Complainant

Respondent

Parties

Gavin  Lawson

Hallquar Engineering Services Limited

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00059069-001

28/09/2023

The Complainant commenced employment with the Respondent on 21st May 2018. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €1,226.00. The Complainant submitted that his employment terminated on 28th June 2023 on the grounds of redundancy.

On 28th September 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that he was entitled to a statutory redundancy payment in circumstances whereby he had been placed on extended lay-off within the meaning of the impleaded Act. In denying this allegation, the Respondent submitted that the Complainant had not complied with the statutory requirements in relation to such applications.

A hearing in relation to this matter was convened for, and finalised on, 15th April 2024. Both parties issued extensive submissions in advance of the hearing, the same were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaint, while a representative for the Respondent gave evidence in defence. All evidence was given under oath or affirmation.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence the Complainant stated that he was employed by the Respondent but engaged to a third party for the majority of his employment. On 2nd June 2023, the Complainant received one week of notice of the finalisation of his contract with the hirer. Thereafter, the Complainant assumed that he was placed on lay-off pending a further assignment by the Respondent. On 28th June 2023, the Complainant applied for a redundancy payment in the manner prescribed by the Act. By response dated 4th July, the Respondent issued a counter-offer of continued employment to the Complainant. This correspondence stated that the Complainant would receive the exact details of this counter offer shortly thereafter. On 18th July the Complainant received a call from a representative of the Respondent, advising of a job offer to commence the following morning.

At this point, the Complainant had commenced a new employment as he had not received a substantial offer of continued employment from the Respondent. At this juncture, the Complainant advised that he could not accept the job offer, and that he was entitled to a statutory redundancy payment. On 21st and 28th July, the Respondent again contacted the Complainant seeking to assign him to new roles. The Complainant did not accept the same as he was out of the country and had formed the viewed that he was, at this point, entitled to a redundancy payment. In addition to the foregoing, the Complainant submitted that the terms of these contracts differed substantially from his prior terms, in that they did not allow for a travel allowances.

By submission, the Complainant submitted that in circumstances whereby he had been placed on lay-off by the Respondent, that no material job offer was received for a number of weeks thereafter and the terms of said offer were substantially different, that he was entitled to a statutory redundancy payment.

By response, the Respondent denied that the Complainant was entitled to a statutory redundancy payment.

By submission, the Respondent agreed that they were the Complainant’s employers and that for the duration of his tenure he was assigned to a third-party site. On 23rd May, the Complainant informed a representative of the Respondent that he had been given notice the completion of his assignment by the hirer. At this point, the Respondent was unaware that this assignment was coming to an end. Shortly thereafter, on 25th May 2023, the Respondent formally informed the Complainant that the assignment was nearly finished and that he would be placed on lay-off from the close of business on 1st June 2023. The correspondence included a copy of form RP9, setting out the Complainant’s rights in this regard.

On 30th June 2023, the Respondent received a copy of the form RP9, with the first part duly completed by the Complainant. Thereafter, on 4th July 2023, the Complainant was issued with counter notice regarding prospective work the Respondent believed would be available. On 18th July 2023, a representative from the Respondent advised the Complainant that a role had become available to following day. By response, the Complainant stated that he had acquired a new role and would require more notice in respect of change of employment. While the Complainant was concerned that this role would not pay travel expenses, the parties discussed other ways by which the Complainant might increase his overall earnings. On 21st July 2023, the Respondent wrote to the Complainant informing him of a role that was due to commence on 28th July. As no response was received from the Complainant, this email was reissued on 21st and 27th July, with another role being offered on 31st July. At this juncture, the Complainant advised the Respondent that he was out of the country on annual leave and would not return until 12th August.

On 14th August, the Complainant wrote to the Respondent advising that he was entitled to a statutory redundancy payment. By return correspondence, the Respondent disagreed with this position, stating that the Complainant had been offered multiple roles and had simply refused to accept same. In such circumstances, the Respondent submitted that the Complainant had forfeited his right to a statutory redundancy payment, and they submitted that his complaint should be deemed to be not well founded.

In the present case, the parties are agreed that the Complainant was placed on lay-off as defined by the impleaded Act. It is further agreed that the Complainant served notice of potential redundancy and that the Respondent replied to the same within the statutory timeframe. The position of the Complainant is that the offer of alternative employment issued by the Respondent did not allow for a suitable notice period, and that it related to significantly reduced terms of employment.

In this regard, Section 11 of the Act provides that lay-off occurs whereby,

“…an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation….”

Thereafter, Section 12(1) provides that,

“An employee shall not be entitled to redundancy payment by reason of having been laid off…unless (a) he has been laid off…for four or more consecutive weeks…and (b) after the expiry of the relevant period of lay-off…mentioned in paragraph (a)…gives to his employer notice…writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Finally, in relation to counter notice, Section 13(1) provides that,

“…an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.”

In the present case, the Complainant has submitted that he did not receive notice of his lay-off from the Respondent, but that this notice came from the hirer. While the Respondent denied this allegation in evidence, and opened the relevant correspondence in this regard, it is common case that the Complainant served form RP9 on the Respondent on 30th June 2023. In such circumstances it is apparent that the requirement of Sections 11 and 12, cited above, have been fulfilled.

Regarding Section 13(1) it is again common case that the Complainant was informed of an alternative role 21st July, within the timeframe for counternotice provided for in Section 13. The Complainant’s position in this regard it two-fold, firstly he submitted that he was no given sufficient notice of the resumed role, secondly he submitted that the same differed substantially from his prior role.

Regarding the first point raised, Section 13(1) does not set out a specific notice period for the resumption of employment, with the relevant wording stating that he would enter into employment no later than four weeks from the date of counter-notice. In addition to the foregoing, it is noted that the Complainant was provided with notice of multiple other roles with reasonable notice of the commencement of same. Regarding the second point, while it was accepted by the Respondent that the new role would not include a travel allowance, it is noted that such an allowance does not form part of the Complainant’s contractual terms, but was an ex-gratia payment issued by the prior hirer. In addition to the same, the evidence of the Respondent was that they were wiling to examine other methods of retaining the Complainant’s net pay, but that the Complainant simply wished for a redundancy payment.

Having regard to the accumulation of foregoing points, I find that the Respondent issued counter notice to the Complainant application for redundancy in accordance with Section 13 of the Act. In such circumstances, the Complainant is not entitled to a statutory redundancy payment and his appeal is unsuccessful.

The Complainant is not entitled to a statutory redundancy payment and his appeal is unsuccessful.

RP9, Notice, Counter-Notice