RPD2418

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047195 (CA-00058237-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 20 April 2024 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 2 August 2024.

 The following is the Decision of the Court:

DECISION:

Background to the Appeal

This is an appeal by Mr Octavian Nacu (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00047195, dated 14 March 2024) under the Redundancy Payments Act 1967 (‘the Act’). Notice of Appeal was received in the Court on 20 April 2024. The Court heard the appeal in Dublin on 2 August 2024. Northwest Personnel Limited (‘the Respondent’) was represented by its Solicitor, Mr Kristian Boino, only and nobody from the company who could have given evidence to the Court was present.

Factual Background

The Respondent is a licensed employment agency that supplies construction workers. The Complainant commenced employment as an agency worker with the Respondent on 21 November 2016 and was assigned by it to a client’s site in Dublin 15. As work on that site diminished, the Complainant was placed on lay-off with effect from 5 May 2023. He subsequently received an offer of alternative employment by letter dated 29 June 2023 offering him work, commencing the following morning, in Kilkenny. The Complainant resides some 120 km from Kilkenny and, therefore, declined the Respondent’s offer employment there because of the distances involved and because he has no private means of transport.

The Complainant initiated a claim for redundancy under section 12 of the Act on 30 June 2023. It is common case that he did so by using Form RP77 sent to the Respondent. As no response was forthcoming from the Respondent, the Complainant referred a complainant under the Act to the Workplace Relations Commission on 11 August 2023.

Submissions

Mr Marosan submits that the Complainant fulfils the requirements of section 7 of the Act and was, therefore, entitled to initiate a claim for a statutory redundancy payment following a period of four or more weeks of lay-off. Mr Maroson further submits that the Complainant gave the Respondent written notice of his intention to seek a redundancy payment in accordance with section 12 of the Act.

Mr Boino submits that the Complainant used the incorrect form to initiate his claim for redundancy and that he should have done so using Form RP9. It is Mr Boino’s submission that the Complainant’s use of the incorrect form in the circumstances disentitles him to a redundancy payment by reason of lay-off. He also submits that the Respondent made a further offer of employment to the Complainant on 17 August 2023.

The Law

Section 12 of the Act provides as follows:

“12. Right to redundancy payment by reason of lay-off or short-time

 (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

 (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

 (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Subsections (1) and (2) of Section 13 are also relevant and provide:

“13. Right of employer to give counter-notice

 (1) Subject to subsection (2), 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.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.”

Discussion and Decision

The Court is aware that Part B of Form RP9 is normally used by employees who have been placed on lay-off or short-time working to notify their employer of their intention to claim a redundancy lump sum. However, neither Form RP77 nor Form RP9 are statutory forms. In the Court’s view, it would be unjustly harsh on the Complainant were it to determine that he had not put the Respondent on notice of his intention to claim redundancy by virtue of having been laid off simply because he used an incorrect non-statutory form to do so.

In Donnelly v DD O'Brien Ltd RP 524/2005, the Employment Appeals Tribunal held that it was a “fundamental requirement” of section 12(2)(a) to render the notice valid that the claimant be on short-time or lay off for a continuous period of four weeks prior to the service of the notice. It is also a fundamental requirement that the notice of intention to claim redundancy be in writing (Graydon v McGrattan & Kenny Ltd RP 396/2005). The Respondent was clearly aware that it had placed the Complainant on lay-off and that his period of lay-off had commenced on 5 May 2023 and had continued for more that four consecutive weeks by the time it had received the Complainant’s RP77. Nobody was present at the hearing of the appeal from the Company to give evidence that the Respondent did not regard the RP77 as a notice from the Complainant of his intention to claim a redundancy payment.

In all the circumstances the Court finds that the Complainant was entitled to seek a redundancy payment following a period of lay-off by the Respondent, that he did seek such a payment in writing and that the Respondent did not avail itself of the opportunity, within one week of receipt of the Complainant’s notice, to make a counter-notice in writing to the Complainant.

It follows, therefore, that the decision of the Adjudication Officer is set aside and the appeal succeeds. The Complainant is entitled to a redundancy lump sum calculated in accordance with the following:

Relevant period of employment: 21 November 2016 to 5 May 2023

Rate of pay = 45 hours per week x €21.00 per hour = €945.00 per week

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
23 September 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.