ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049749

Parties:

Complaints:

Date of Adjudication Hearing:  21/08/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 6 of the Payment of Wages Act, 1991;Regulation 15 of the  European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 ; section 27 of the Organisation of Working Time Act, 1997; Section 39 of the Redundancy Payments Act, 1967 and Section 12 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Affirmation or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Non-Attendance of the Respondent

The Respondent did not attend the Hearing. I was satisfied that proper notice of the time, date and place of the Hearing had been properly served. A number of days grace was allowed for receipt of extenuating explanations, but none were received.

Background:

1:        Summary of Complainant’s Case:

2:        Summary of Respondent’s Case:

3:        Findings and Conclusions:

3:2        CA-00059539-005 Redundancy Payment complaint.

The Redundancy Payments Act,1967, as amended, at Section 7 states

General right to redundancy payment.

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of  four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

[(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

The key issue here is the end date of the Employment. This issue was touched upon in RPD 2419 and RPD 2410 by the Labour Court in August 2024. These were related cases with colleagues of the Complainant and the same Employer.

The Court was of the view that the Colleagues considered had never been Laid Off or had never Resigned from the Employment. The serving of the RP9 Forms by these colleagues was therefore inappropriate.

In this case the Oral evidence was central. The Complainant had considered himself an employee until the Service of her RP9 Form on the 4th May 2022. The serving of the form was from a feeling of complete frustration engendered by the total lack of contact or response to emails phone calls etc by her former employer. On the 5th May 2022 he considered, reasonably, that the “Job was over” and he was never going to be brought back.

An employee, faced with a “Closed Gate” situation and no communication from the former Employer is reasonably allowed to presume he or she has been made redundant.

 A period of Grace or “Employment Limbo” status is also reasonable particularly where the Covid and PUP Payment Schemes were in vogue.  The Oral Evidence, under Oath, from the Complainant was that his patience had run out and the serving of the RP9 form was tantamount to his accepting that, in the complete absence of any Employer communications, the “job was over.”

On this basis it is the WRC Adjudication view that the 4th May 2022 is the last day of employment. Redundancy has to be calculated to this date.

3:2:1     

The issue then has to focus on time limits for the Redundancy claim. Section 42 of the Act is set out below.

Redundancy Payments Act,1967 Time-limit on claims for redundancy payment.

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of [52 weeks] beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the [Director General] under section 39.

[(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.]

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied] that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.]

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

In this case, if it is accepted that the last day of employment was the 5th May 2022 a period of 104 weeks would run to the 2nd May 2024. As the Complaint was lodged at the WRC on the 22nd October 2022 it is within time. The Adjudicator was satisfied that proper ground existed to extend the referral period to 104 weeks.

Accordingly, the Complainant is due Statutory redundancy from the 1st  May 2016 to the 4th May 2022.

The final rate of pay was €15:00 per hour by 30 hours to give a weekly rate of €450.

(The exact Redundancy figures can only be referenced by the records of the Department of Social Protection.)

4:        Decision:

Section 41 of the Workplace Relations Act 2015 ; Section 6 of the Payment of Wages Act, 1991;Regulation 15 of the  European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 ; section 27 of the Organisation of Working Time Act, 1997; Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

4:1         Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

CA-00059539-005 Redundancy Payment complaint.

Statutory Redundancy is due to the Complainant for the period of employment from

17th May 1996 to the 4th May 2022. The rate of pay was stated to have been €450 per week.

(the exact Redundancy amount has to be calculated by reference to the Department of Social Protection records.)

4:2        Additional Complaints – Decisions for Record purposes

Dated:   26-09-24

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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