Complainant

Respondent

Parties

George  Kelly

Michael Corrigan

Complainant

Respondent

Anonymised Parties

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Representatives

Liam Carroll BL instructed by John Lynch & Company Solicitors

Pat Barriscale BL instructed by Browne & Murphy Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057193-001

19/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00057193-002

19/06/2023

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

CA-00057193-003

19/06/2023

The complainant submits that he did not receive terms of employment, that he was left with no alternative but to resign his position and that his position was made redundant, and he has not received redundancy payment.

The complaint was received on 19/06/2023 and the complainant commenced employment on approximately 01/09/1986 and his employment ended on 25/04/2023 and he submitted that his net weekly payment was €500, and he also received travelling expenses.

It was submitted that the complainant had not received terms of employment and that the complainant had the right to work and where there is failure to provide work especially with lay off situations or short time working then there are remedies for the employees.  A lack of work and failures by the respondent to fulfill his commitment aligns with a lay off situation in such circumstances where the complainant did not receive terms of employment.

It was submitted that the complainant suffered a workplace injury on 23/06/2020 and underwent surgery on 20/08/2021.  In April 2022 the complainant made efforts to return to work but there were delays and lack of clear communication from the respondent and that the respondent created repeated obstacles and delays despite the complainant’s efforts.  Between May 2022 and November 2022 there was exchange of correspondence facilitated by the parties’ representatives.    It was not until December 2022 that Mr Corrigan definitively said there were work available and more delays followed and more obstructions and on 05/12/2022 the respondent outlined that he “has not tendered for work for a long period of time” and in further correspondence outlined that he “hopefully (would) have work in January (2023)”. 

On 18/01/2023 a RP9 was issued, and the respondent completed and returned this on 24/01/2023 committing to providing 13 weeks of uninterrupted work within 4 weeks.  More delays ensued such that between January – April 2023 it was clear that the respondent was not fulfilling his commitments resulting in growing tension between the parties.  The complainant was left with no alternative but to resign his position which he did on 25/04/2023 as the complainant believed he was being constructively dismissed and had a right to redundancy.  The respondent’s behaviours were not suggestive of a respondent who had work available for the complainant. Copies of the significant exchange of communication between parties or their representatives regarding matters was submitted.  It was submitted that there was no claim for loss of earnings as the complainant was working.

The complainant gave evidence that he started work in September 1986 doing plumbing and heating and worked 37 years and during the boom there were 3 other guys working and then there was just the complainant and his boss Mr Corrigan.  He said he found the working relationship deteriorated when he told Mr Corrigan about the surgery that was needed and when he told the respondent that he might need to look at the respondent’s insurance.  He was at the doctor on 08/06/2021, had surgery 05/08/2021, tried to return to work after surgery and physio and got the ok to return April 2022.  Mr Kelly said he phoned the respondent and told him that he had the go ahead and he was told it was not that simple and that the respondent’s insurance would cost him thousands. 

The complainant’s evidence was that Mr Corrigan said he would get back to the complainant and the complainant told him he would get a doctor’s cert that he was now fit to return which Mr Corrigan was to forward to the insurance company and Mr Corrigan said he would be in touch, but he never got in touch.  A week went by, and the complainant contacted a solicitor to get advice and the PIAB insurance claim was nothing to do with getting back to work.  The complainant said he was advised to do light duties for a period by the doctor and the complainant was to return to work on 27/09/2022 and letters were sent from the respondent to the complainant’s representative who was dealing with the matter on behalf of the complainant.  Mr Corrigan advised that the complainant had to go for a medical and this happened early December 2022 and the complainant was deemed fit to return to work and Mr Corrigan was to get in touch with his insurance company and the complainant said he was due to return to work on 18/01/2023. 

The complainant said his representative advised him that Mr Corrigan would tell the complainant where to go but there was no contact from Mr Corrigan despite the complainant waiting by the phone and Mr Corrigan never rang.  Then Mr Corrigan phoned the complainant and said he wanted to meet him and that he had a job and asked for certs to be able to return work and the complainant said he already provided these.  The complainant asked if there would be someone there to assist with lifting and Mr Corrigan seemed surprised that the complainant was asking for help.  Mr Corrigan told him that the respondent’s insurance was costing a fortune and he told the complainant that he had been advised that the complainant was not to use any of the respondent’s tools.  Mr Corrigan said that he had priced the job for one man for that day and that it would not pay him to have another person to help the complainant.  The complainant gave evidence that he was told he could not return as there was a claim submitted by him to PIAB.  The complainant gave evidence regarding efforts to mitigate his loss and said he rang maybe 3 other plumbers regarding work and made phone calls in December 2022 regarding other work as he was trying to get back to work with the respondent.

Under cross examination the complainant said he phoned another person about work in December 2022 as it looked like he was not going to be returning to work with the respondent.    He said Mr Corrigan was making no efforts to have him back at work and once he finished physio in April 2022 he was fit to return.  He confirmed that he expected light duties and had no issues with doing taps or showers but would have a difficulty with lifting involved.  He said he did not report the injury at the time as he did not know how injured he was.  He said the drill snapped and 8 months later went to the doctor as he was not getting sleep.  He told Mr Corrigan the day he met the surgeon and told him he might need to look at his insurance as this was going to be expensive and did not know how long he would be out sick.  He confirmed that he did not send sick certs and that the respondent did not look for them and that he did not give Mr Corrigan an update regarding his recovery.  His evidence was he was never offered help to return with light duties and in November 2022 when he was fit to return there was no work available till January 2023 and that Mr Corrigan knew the complainant was looking to come back.  He said he met Mr Corrigan at the house and was told there was one day work available and that Mr Corrigan did not know when there would be more work available.  He said the question about working only with registered tools came from a third party and that he was only offered one day work.  He said he served the RP9 as he could not keep waiting at home and had no choice and Mr Corrigan returned the form saying he had work for the complainant. 

Mr Kelly in cross examination of his evidence confirmed that he decided to work in September 2023 3 days per week which is his choice.  He said he had an accident on 06/11/2019 where he suffered a burn to his fingers and was out for 4 weeks and he said he could have done independent work.  He said he never received pay slips from the respondent and that his doctor and physio advised him to do light work.  His evidence was that 60% of his work could be considered light work and that that in all his time working there, there was never raised voices between himself and Mr Corrigan.  He said that he had no choice but to leave his employment and that a redundancy situation existed.

The respondent accepts that the complainant did not receive a statement of terms of employment.

It was submitted that the complainant is alleged to have suffered an injury at work on 23/06/2020 and the complainant failed to make an entry in the accident book and the complainant worked as normal and did not take time off work.  On 21/02/2021 the complainant sought medical attention, for the first time and the respondent only discovered this when the complainant submitted a claim to PIAB.  On 16/07/2021 the complainant worked as normal and went on his summer holidays.  The complainant advised that he was having surgery in August 2021 and the respondent learned that the complainant intended to make a personal injury claim and the complainant did not return to work, and the respondent had to look for smaller jobs as he no longer had the complainant, and the complainant was his only employee. 

On 21/04/2022 the complainant sought to return to work on light duties which was not possible as a plumber.  On 18/05/2022 the complainant was deemed unfit to return to work and in November 2022 was deemed fit to return to work and no sick certs had been received prior to that.  The complainant was seen by respondent’s doctor on 02/12/2022 who deemed the complainant fit to return to work.  The respondent tendered for work and found it difficult to get work and on 17/01/2023 a meeting was arranged with the complainant and respondent.  The complainant presented several conditions on his return to work including that a person be present if there was any lifting involved, power tools required had to be certified, the respondent must provide tools to him and the respondent had to be fully insured. 

This attitude suggested that the complainant was not bona fides in returning to work and did not turn up for work despite repeated requests to do so.  The respondent tried to encourage that the matter could be resolved and on 16/01/2023 advised through his representative that the “clients should be able to sort this out themselves without (the solicitors) getting involved. Despite this, on 18/01/2023 the complainant served a RP9 on the respondent.  On 24/01/2023 the respondent completed the RP9 and returned it to the complainant.  On 18/01/2023 until 02/03/2023 the complainant did not show up for work and on 10/03/2023 the respondent queried why it had taken 6 weeks to respond to the respondent’s letters.  On 25/04/2023 a letter of resignation was received from the complainant.  Copies of the significant exchange of communication between parties or their representatives regarding matters was submitted.

Mr Corrigan gave evidence that he did not know about the accident at the time and that he was told the incident occurred around June 2020.  His evidence was that the complainant remained working till April 2021 and then in July 2021 the complainant went on holidays, and he said he was going to have an operation on his shoulder after the holiday.  Mr Corrigan said he had no idea how long the complainant would be out for and then heard that the complainant had a cert regarding light duties around April 2022 and a medical examination was arranged which said the complainant was unfit for work.  His evidence was that he did not think light duties arises in the plumbing world and it would not be relevant.  He said to be insured the complainant needed to be fully fit for work and throughout the complainant’s absence the complainant never submitted sick certs.  He said that from about November 2022 he actively sought work and sent the complainant back to OH and they deemed the complainant fit for work.  The complainant had been absent about 16 months at this stage and December is a difficult time to secure work and the complainant was advised it would be January 2023 before work would be secured.  When the complainant was returning, he asked him to come to his house and the complainant talked about assistance he would need returning to work and that tools would need to be certified and the meeting concluded with the complainant saying he needed legal advice and there was no contact for a while.

Mr Corrigan said he had tendered for work and hoped to get work.  There was 1 day work available and small jobs and Mr Corrigan said he felt that the complainant did not want to get back to work and there was exchange of text messages and correspondence between them.  He said if the complainant had returned there would have been work and they could have sorted it out as the respondent has a large enough circle of clients and they had worked together for over 35 years.  Mr Corrigan said that the complainant was in receipt of over €650 comprising of wages and daily expenses and did not take anyone else on afterwards.

Under cross examination Mr Corrigan said that the complainant was paid cash of €650 comprising wages and expenses and the complainant did not always get a pay slip and they always had a very agreeable relationship and there was never a contract in place.  He said that the complainant had his own tools and did much of his own work and maybe he had given him tools and he denied that he said the complainant could not use a hammer.  He said that work had wound down and that the complainant was deemed fit to return to work November/December 2022 and said that his phone number had been working around this time and he did not know why the complainant could not get through to him.  Mr Corrigan said he felt the complainant was very disingenuous saying that there was no work available.  He said that he understood what the form RP9 meant about providing 13 weeks work and was actively trying to find work and he said there was not immediately 13 weeks work available.  He said his business naturally contracted and that he does not employ anyone else.

Submissions from parties were received with copious volume of the correspondence exchanged between them provided and evidence heard and, whilst I will not be referring to every letter or incident I have considered all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.

The complainant submits that he did not receive a statement in writing on his terms of employment and the respondent confirmed that there was not a statement in writing of his terms of employment provided.

Section 3 provides that

 “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing …particulars of the terms of the employee’s employment…”

It is also set out that

6.—(1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement under section 3 and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4 .

(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1) furnish to the employee concerned a written statement in accordance with that subsection.

I note that the complainant commenced employment on 01/09/1986 and there was no evidence submitted that he requested a statement containing terms of employment.  I find therefore that the complaint is not well founded and dismiss the complaint.

The complainant submitted that there was a failure to follow fair procedures in his dismissal and the complainant was not treated fairly and there was a lack of fair process in the dismissal and the complainant was left with no alternative but to resign his position.  He submitted that he issued a form RP9 to his employer on 18/01/2023 and he counterclaimed on 24/01/2023 and never gave the 13 weeks work as promised and despite text messages asking for work and that there was no loss of earnings.

The complaint was received on 19/06/2023 and the complainant commenced employment on approximately 01/09/1986 and his employment ended on 25/04/2023 and he submitted that his net weekly payment was €500, and he also received travelling expenses.

It was submitted that the complainant suffered a workplace injury on 23/06/2020 and underwent surgery on 20/08/2021.  In April 2022 the complainant made efforts to return to work but there were delays and lack of clear communication from the respondent and that the respondent created repeated obstacles and delays despite the complainant’s efforts.  Between May 2022 and November 2022 there was exchange of correspondence facilitated by the parties’ representatives.    It was not until December 2022 that Mr Corrigan definitively said there were work available and more delays followed and more obstructions and on 05/12/2022 the respondent outlined that he “has not tendered for work for a long period of time” and in further correspondence outlined that he “hopefully (would) have work in January (2023)”. 

On 18/01/2023 a RP9 was issued, and the respondent completed and returned this on 24/01/2023 committing to providing 13 weeks of uninterrupted work within 4 weeks.  More delays ensued such that between January – April 2023 it was clear that the respondent was not fulfilling his commitments resulting in growing tension between the parties.  The complainant was left with no alternative but to resign his position which he did on 25/04/2023 as the complainant believed he was being constructively dismissed and had a right to redundancy.  The respondent’s behaviours were not suggestive of a respondent who had work available for the complainant. Copies of the significant exchange of communication between parties or their representatives regarding matters was submitted.  It was submitted that there was no claim for loss of earnings as the complainant was working.

The complainant gave evidence that he started work in September 1986 doing plumbing and heating and worked 37 years and during the boom there were 3 other guys working and then there was just the complainant and his boss Mr Corrigan.  He said he found the working relationship deteriorated when he told Mr Corrigan about the surgery that was needed and when he told the respondent that he might need to look at the respondent’s insurance.  He was at the doctor on 08/06/2021, had surgery 05/08/2021, tried to return to work after surgery and physio and got the ok to return April 2022.  Mr Kelly said he phoned the respondent and told him that he had the go ahead and he was told it was not that simple and that the respondent’s insurance would cost him thousands. 

The complainant’s evidence was that Mr Corrigan said he would get back to the complainant and the complainant told him he would get a doctor’s cert that he was now fit to return which Mr Corrigan was to forward to the insurance company and Mr Corrigan said he would be in touch, but he never got in touch.  A week went by, and the complainant contacted a solicitor to get advice and the PIAB insurance claim was nothing to do with getting back to work.  The complainant said he was advised to do light duties for a period by the doctor and the complainant was to return to work on 27/09/2022 and letters were sent from the respondent to the complainant’s representative who was dealing with the matter on behalf of the complainant.  Mr Corrigan advised that the complainant had to go for a medical and this happened early December 2022 and the complainant was deemed fit to return to work and Mr Corrigan was to get in touch with his insurance company and the complainant said he was due to return to work on 18/01/2023. 

The complainant said his representative advised him that Mr Corrigan would tell the complainant where to go but there was no contact from Mr Corrigan despite the complainant waiting by the phone and Mr Corrigan never rang.  Then Mr Corrigan phoned the complainant and said he wanted to meet him and that he had a job and asked for certs to be able to return work and the complainant said he already provided these.  The complainant asked if there would be someone there to assist with lifting and Mr Corrigan seemed surprised that the complainant was asking for help.  Mr Corrigan told him that the respondent’s insurance was costing a fortune and he told the complainant that he had been advised that the complainant was not to use any of the respondent’s tools.  Mr Corrigan said that he had priced the job for one man for that day and that it would not pay him to have another person to help the complainant.  The complainant gave evidence that he was told he could not return as there was a claim submitted by him to PIAB.  The complainant gave evidence regarding efforts to mitigate his loss and said he rang maybe 3 other plumbers regarding work and made phone calls in December 2022 regarding other work as he was trying to get back to work with the respondent.

Under cross examination the complainant said he phoned another person about work in December 2022 as it looked like he was not going to be returning to work with the respondent.    He said Mr Corrigan was making no efforts to have him back at work and once he finished physio in April 2022 he was fit to return.  He confirmed that he expected light duties and had no issues with doing taps or showers but would have a difficulty with lifting involved.  He said he did not report the injury at the time as he did not know how injured he was.  He said the drill snapped and 8 months later went to the doctor as he was not getting sleep.  He told Mr Corrigan the day he met the surgeon and told him he might need to look at his insurance as this was going to be expensive and did not know how long he would be out sick.  He confirmed that he did not send sick certs and that the respondent did not look for them and that he did not give Mr Corrigan an update regarding his recovery.  His evidence was he was never offered help to return with light duties and in November 2022 when he was fit to return there was no work available till January 2023 and that Mr Corrigan knew the complainant was looking to come back.  He said he met Mr Corrigan at the house and was told there was one day work available and that Mr Corrigan did not know when there would be more work available.  He said the question about working only with registered tools came from a third party and that he was only offered one day work.  He said he served the RP9 as he could not keep waiting at home and had no choice and Mr Corrigan returned the form saying he had work for the complainant. 

Mr Kelly in cross examination of his evidence confirmed that he decided to work in September 2023 3 days per week which is his choice.  He said he had an accident on 06/11/2019 where he suffered a burn to his fingers and was out for 4 weeks and he said he could have done independent work.  He said he never received pay slips from the respondent and that his doctor and physio advised him to do light work.  His evidence was that 60% of his work could be considered light work and that that in all his time working there, there was never raised voices between himself and Mr Corrigan.  He said that he had no choice but to leave his employment and that a redundancy situation existed.

The respondent disputes the claim of constructive dismissal and submits that the complainant resigned his position and that in any event the complainant must decide if his claim is that of redundancy or constructive dismissal. It was submitted that the complainant is alleged to have suffered an injury at work on 23/06/2020 and the complainant failed to make an entry in the accident book and the complainant worked as normal and did not take time off work.  On 21/02/2021 the complainant sought medical attention, for the first time and the respondent only discovered this when the complainant submitted a claim to PIAB.  On 16/07/2021 the complainant worked as normal and went on his summer holidays.  The complainant advised that he was having surgery in August 2021 and the respondent learned that the complainant intended to make a personal injury claim and the complainant did not return to work, and the respondent had to look for smaller jobs as he no longer had the complainant, and the complainant was his only employee. 

On 21/04/2022 the complainant sought to return to work on light duties which was not possible as a plumber.  On 18/05/2022 the complainant was deemed unfit to return to work and in November 2022 was deemed fit to return to work and no sick certs had been received prior to that.  The complainant was seen by respondent’s doctor on 02/12/2022 who deemed the complainant fit to return to work.  The respondent tendered for work and found it difficult to get work and on 17/01/2023 a meeting was arranged with the complainant and respondent.  The complainant presented several conditions on his return to work including that a person be present if there was any lifting involved, power tools required had to be certified, the respondent must provide tools to him and the respondent had to be fully insured. 

This attitude suggested that the complainant was not bona fides in returning to work and did not turn up for work despite repeated requests to do so.  The respondent tried to encourage that the matter could be resolved and on 16/01/2023 advised through his representative that the “clients should be able to sort this out themselves without (the solicitors) getting involved. Despite this, on 18/01/2023 the complainant served a RP9 on the respondent.  On 24/01/2023 the respondent completed the RP9 and returned it to the complainant.  On 18/01/2023 until 02/03/2023 the complainant did not show up for work and on 10/03/2023 the respondent queried why it had taken 6 weeks to respond to the respondent’s letters.  On 25/04/2023 a letter of resignation was received from the complainant.  Copies of the significant exchange of communication between parties or their representatives regarding matters was submitted.

Mr Corrigan gave evidence that he did not know about the accident at the time and that he was told the incident occurred around June 2020.  His evidence was that the complainant remained working till April 2021 and then in July 2021 the complainant went on holidays, and he said he was going to have an operation on his shoulder after the holiday.  Mr Corrigan said he had no idea how long the complainant would be out for and then heard that the complainant had a cert regarding light duties around April 2022 and a medical examination was arranged which said the complainant was unfit for work.  His evidence was that he did not think light duties arises in the plumbing world and it would not be relevant.  He said to be insured the complainant needed to be fully fit for work and throughout the complainant’s absence the complainant never submitted sick certs.  He said that from about November 2022 he actively sought work and sent the complainant back to OH and they deemed the complainant fit for work.  The complainant had been absent about 16 months at this stage and December is a difficult time to secure work and the complainant was advised it would be January 2023 before work would be secured.  When the complainant was returning, he asked him to come to his house and the complainant talked about assistance he would need returning to work and that tools would need to be certified and the meeting concluded with the complainant saying he needed legal advice and there was no contact for a while.

Mr Corrigan said he had tendered for work and hoped to get work.  There was 1 day work available and small jobs and Mr Corrigan said he felt that the complainant did not want to get back to work and there was exchange of text messages and correspondence between them.  He said if the complainant had returned there would have been work and they could have sorted it out as the respondent has a large enough circle of clients and they had worked together for over 35 years.  Mr Corrigan said that the complainant was in receipt of over €650 comprising of wages and daily expenses and did not take anyone else on afterwards.

Under cross examination Mr Corrigan said that the complainant was paid cash of €650 comprising wages and expenses and the complainant did not always get a pay slip and they always had a very agreeable relationship and there was never a contract in place.  He said that the complainant had his own tools and did much of his own work and maybe he had given him tools and he denied that he said the complainant could not use a hammer.  He said that work had wound down and that the complainant was deemed fit to return to work November/December 2022 and said that his phone number had been working around this time and he did not know why the complainant could not get through to him.  Mr Corrigan said he felt the complainant was very disingenuous saying that there was no work available.  He said that he understood what the form RP9 meant about providing 13 weeks work and was actively trying to find work and he said there was not immediately 13 weeks work available.  He said his business naturally contracted and that he does not employ anyone else.

Submissions from parties were received with copious volume of the correspondence exchanged and evidence heard and, whilst I will not be referring to every letter or incident I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.

The complainant submits that he was left with no alternative but to resign his position owing to the behaviour of the respondent.  The respondent submits that the complainant resigned his position and that in any event the complainant must decide if his claim is that of redundancy or constructive dismissal.  It was agreed that the complainant did not have written terms of employment.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

For complaints of constructive dismissal, the burden of proof rests with the complainant to show the resignation was justified in all the circumstances. Tests apply with regard to constructive dismissal complaints include the “contract test” whereby circumstances in which a resignation may be considered as constructive dismissal are where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his/her position.  The employer is guilty therefore of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract and therefore, the employee is entitled to treat himself as discharged from any further performance as held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

Under Section 3(4) it sets out that

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…

(c) the redundancy of the employee…

There was conflict of evidence regarding the gross weekly pay, and it would appear from the limited pay slips that were provided to me that the average weekly gross payment was €511.86. 

Section 11 and Section 12.provides that

Lay-off and short-time.

11.— (1) Where 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,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short time for that week.

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

Section 12, —(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.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The complainant commenced employment on 01/09/1986 and the employment relationship seemed uneventful until the complainant alleges, he suffered a shoulder injury on 23/06/2021 which the complainant did not appear to report at the time.  The respondent became aware of this allegation of a workplace injury after a notification through Personal Injuries Assessment Board (PIAB) and the complainant sought medical treatment 21/02/2022 and went out for a shoulder injury repair in August 2021.    It appears that the complainant first sought to return to work in April 2022 and resigned his position in April 2023.  

I am most struck by how a relationship between two people who worked together since 1986 could deteriorate to the extent demonstrated by both parties’ behaviours through their direct communication and by their instructions to solicitors.  Both the complainant and Mr Corrigan gave evidence that there never had been any issues between them and then when the allegation of a shoulder injury arose all of a sudden the relationship soured to an extent that they could not communicate to each other directly, would only communicate through their representatives and even then communication of points of view appeared to be done in a most damaged and aggressive manner. 

The respondent submits that the complainant resigned his position.  The complainant submits that he was left with no alternative but to resign his position.  I note that around 25/04/2022 the complainant issued a cert confirming his fitness to return to work from his GP, but the respondent appeared to be unhappy with the details contained therein and another medical was arranged for the complainant in May 2022 whereby the complainant was deemed unfit to return to work.   The complainant requested a further medical assessment which did not take place until November 2022 and it would appear that that on the one hand the respondent wanted a fitness to return to work certs from the complainant’s gp but then it appeared that the respondent was not going to be accepting any such certs and wanted further referral to the respondent’s medical physician.  There appeared a lack of sense of urgency from the respondent with the complainant requests seeking this further assessment which did not take place until 14/11/2022. 

I note Mr Corrigan’s evidence and it does not seem that he was actively seeking tenders for work at this time when it appeared likely that the complainant would be returning to work, albeit an exact date had not been established.  I note the communication from the respondent dated 05/12/2022 that the respondent “has not tendered for work for a long period of time” albeit the complainant’s communication on 25/09/2022 clearly identified the complainant would soon be returning to work.  I find it also of importance that that the respondent advised he did not have work available for the complainant and that he would “hopefully have work in January (2023)” and the direct evidence of Mr Corrigan is that his work has contracted. 

The complainant put the respondent on notice including on 15/12/2022 that the complainant was assuming that he was on lay-off and further confirmed this on 18/01/2023 by issuing a RP9.  I find it surprising that the respondent advised on 24/01/2023 through the returned RP9 that it was reasonable to expect that within 4 weeks there would be employment yet, having reviewed all the correspondence both before and after this time, I have seen nothing that points towards the respondent outlining efforts to secure work or more importantly having work available for the complainant. 

It is not lost on me also that there were many occasions where the complainant was not helping matters.  It goes without saying that an employee should expect safe and appropriate tools to work with which the complainant highlighted but it appeared on many occasions that the complainant might appeared to be aggravating the situation by the manner in it appears he was instructing his solicitor to engage with the respondent’s solicitor.  I note the respondent’s representatives’ email of 16/01/2023 outlining same by advising that the “clients should be able to sort this out themselves without (the solicitors) getting involved”.  Further communication followed including on 17/01/2023 the complainant advised that there was only work for one day and the complainant through his solicitor advised on 25/04/2023 that he was resigning his position.  While noting that the respondent failed to respond to this letter suggesting any alternative course for the parties, it would appear to me in all the circumstances of this case more credible taking note of the respondent’s evidence regarding failures to tender and inability to provide work for the complainant that there was no position available for the complainant and that his position was therefore redundant.

I find in those circumstances therefore, that there was a dismissal, that there was no longer a position available for the complainant and as the dismissal of the employee was owing to the redundancy of the employee, I find that the dismissal was not unfair and I dismiss the complaint of unfair dismissal.

It was submitted that the failure to provide consistent employment and the ambiguity meets the threshold for redundancy and the complainant served a RP9 to the respondent who responded committing to 13 weeks uninterrupted work but failed to provide this.

The complaint was received on 19/06/2023 and the complainant commenced employment on approximately 01/09/1986 and his employment ended on 25/04/2023 and he submitted that his net weekly payment was €500, and he also received travelling expenses.

It was submitted that he had not received terms of employment and that the complainant had the right to work and where there is failure to provide work especially with lay off situations or short time working then there are remedies for the employees.  A lack of work and failures by the respondent to fulfill his commitment aligns with a lay off situation in such circumstances where the complainant did not receive terms of employment.

It was submitted that the complainant suffered a workplace injury on 23/06/2020 and underwent surgery on 20/08/2021.  Approximately April 2022 the complainant made efforts to return to work but there were delays and lack of clear communication from the respondent and that the respondent created repeated obstacles and delays despite the complainant’s efforts.  Between May 2022 and November 2022 there was exchange of correspondence facilitated by the parties’ representatives.    It was not until December 2022 that Mr Corrigan definitively said there were work available and more delays followed and more obstructions. 

On 18/01/2023 a RP9 was issued, and the respondent completed and returned this on 24/01/2023 committing to providing 13 weeks of uninterrupted work within 4 weeks.  More delays ensued such that between January – April 2023 it was clear that the respondent was not fulfilling his commitments resulting in growing tension between the parties.  The complainant was left with no alternative but to resign his position which he did on 25/04/2023 as the complainant believed he was being constructively dismissed and a had a right to redundancy.  The respondent’s behaviour undermined his professional obligations and was not suggestive of a respondent who had work available for the complainant.

The complainant gave evidence that he started work in September 1986 doing plumbing and heating and worked 37 years and during the boom there were 3 other guys working and then there was just the complainant and his boss Mr Corrigan.  He said he found the working relationship deteriorated when he told Mr Corrigan about the surgery that was needed and when he told the respondent that he might need to look at the respondent’s insurance.  He was at the doctor on 08/06/2021 and had surgery 05/08/2021 and tried to return to work after surgery and physio and got the ok to return April 2022 and phoned the respondent and told him that he had the go ahead and he was told it was not that simple and that the respondent’s insurance would cost him thousands. 

The complainant’s evidence was that Mr Corrigan said he would get back to the complainant and the complainant told him he would get a doctor’s cert that he was now fit to return which Mr Corrigan was to forward to the insurance company and Mr Corrigan said he would be in touch, but he never got in touch.  A week went by, and the complainant contacted a solicitor to get advice and the PIAB insurance claim was nothing to do with getting back to work.  The complainant said he was advised to do light duties for a period by the doctor and Mr Corrigan did not say anything, and the complainant was to return to work on 27/09/2022 and letters were sent from the respondent to the complainant’s representative who was dealing with the matter on behalf of the complainant.  Mr Corrigan advised that the complainant had to go for a medical and this happened early December 2022 and the complainant was deemed fit to return to work and Mr Corrigan was to get in touch with his insurance company and the complainant said he was due to return to work on 18/01/2023. 

The complainant advised that his representative advised him that Mr Corrigan would tell the complainant where to go but there was no contact from Mr Corrigan despite the complainant waiting by the phone and Mr Corrigan never rang.  Then Mr Corrigan phoned the complainant and said he wanted to meet the complainant and advised the complainant that he had a job and asked the complainant for certs to be able to return work and the complainant said he already provided these.  The complainant asked if there would be someone there to assist the complainant lifting and Mr Corrigan seemed surprised that the complainant was asking for help and said that the respondent’s insurance was costing a fortune and he told the complainant that he had been advised that the complainant was not to use any of the respondent’s tools.  Mr Corrigan said that he had priced the job for one man for that day and that it would not pay him to have another person to help the complainant.  The complainant gave evidence that he was told he could not return as there was a claim submitted by him to PIAB.  The complainant gave evidence regarding efforts to mitigate his loss and said he rang maybe 3 other plumbers regarding work and made phone calls in December 2022 regarding other work as he was trying to get back to work with the respondent.

Under cross examination the complainant said he phoned another person about work in December 2022 as it looked like he was not going to be returning to work with the respondent.    He said Mr Corrigan was making no efforts to have him back at work and once he finished physio in April 2022 he was fit to return.  He confirmed that he expected light duties and had no issues with doing taps or showers but would have a difficulty with lifting involved.  He said he did not report the injury at the time as he did not know how injured he was.  He said the drill snapped and 8 months later went to the doctor as he was not getting sleep.  He told Mr Corrigan the day he met the surgeon and told him he might need to look at his insurance as this was going to be expensive and did not know how long he would be.  He confirmed that he did not send sick certs and that the respondent did not look for them and that he did not give Mr Corrigan an update regarding his recovery.  His evidence was there never help offered to him to return with light duties and in November 2022 when he was fit to return there was no work available till January 2023 and that Mr Corrigan knew the complainant was looking to come back.  He said he met Mr Corrigan at the house and was told there was one day work available and that Mr Corrigan did not know when there would be more work available.  He said the question about registered tools came from a third party and that he was only offered one day work.  He said he served the RP9 as he could not keep waiting at home and had no choice and Mr Corrigan returned the form saying he had work for the complainant. 

Mr Kelly in cross examination of his evidence confirmed that he decided to work in September 2023 and works 3 days per week which is his choice.  He said he had an accident on 06/11/2019 where he suffered a burn to his fingers and was out for 4 weeks and he said he could have done independent work.  He said he never received pay slips from the respondent and that his doctor and physio advised him to do light work.  His evidence was that 60% of his work could be light work.  His evidence was that in all his time working there was never raised voices between himself and Mr Corrigan. 

It was submitted that no redundancy arose and that the complainant was out of work for approximately 18 months when eventually certified fit to return to work.  When it was agreed on 17/01/2023 to return to work the complainant did not do so and introduced uncertainty that if he got work whether he would be able to service it or not.  It was submitted that it was impossible for the respondent to provide work immediately when the complainant was certified fit to return and if given time the respondent would have been able to secure work.

On 21/02/2021 the complainant sought medical attention, for the first time and the respondent only discovered this when the complainant submitted a claim to PIAB.  On 16/07/2021 the complainant worked as normal and went on his summer holidays.  The complainant advised that he was having surgery in August 2021 and the respondent learned that the complainant intended to make a personal injury claim and the complainant did not return to work, and the respondent had to look for smaller jobs as he no longer had the complainant. 

On 21/04/2022 the complainant sought to return to work on light duties which was not possible as a plumber.  On 18/05/2022 the complainant was deemed unfit to return to work and in November 2022 was deemed fit to return to work and no sick certs had been received prior to that.  The complainant was seen by respondent’s doctor on 02/12/2022 who deemed the complainant fit to return to work.  The respondent tendered for work and found it difficult to get work and on 17/01/2023 a meeting was arranged with the complainant and respondent.  The complainant presented several conditions on his return to work including that a person be present if there was any lifting involved, power tools required had to be certified, the respondent must provide tools to him and the respondent had to be fully insured. 

This attitude suggested that the complainant was not bona fides in returning to work and did not turn up for work despite repeated requests to do so and on 18/01/2023 served a RP9 on the respondent.  On 24/01/2023 the respondent completed the RP9 and returned it to the complainant.  On 18/01/2023 until 02/03/2023 the complainant did not show up for work and on 10/03/2023 the respondent queried why it had taken 6 weeks to respond to the respondent’s letters and had outlined in an email of 16/01/2023 that the “clients should be able to sort this out themselves without (the solicitors) getting involved.  On 25/04/2023 a letter of resignation was received from the complainant.

Mr Corrigan gave evidence that he did not know about the accident at the time and that he was told the incident occurred around June 2020 and that the complainant remained working till April 2021 and then in July 2021 the complainant went on holidays, and he said he was going to have an operation on his shoulder after the holiday.  Mr Corrigan said he had no idea how long the complainant would be out for and then heard that the complainant had a cert regarding light duties around April 2022 and a medical examination was arranged which said the complainant was unfit for work.  His evidence was that he did not think light duties arises in the plumbing work that he does, and it would not be relevant.  He said to be insured that the complainant needed to be fully fit for work and throughout the complainant’s absence the complainant never submitted sick certs.  He said that from about November 2022 he actively sought work and sent the complainant back to OH and they deemed the complainant fit for work.  The complainant had been absent about 16 months at this stage and December is a difficult time to secure work and the complainant was advised it would be January 2023 before work would be secured.  When the complainant was returning, he asked him to come to his house and the complainant talked about assistance he would need returning to work and that tools would need to be certified and the meeting concluded with the complainant saying he needed legal advice and there was no contact for a while.

Mr Corrigan said he had tendered for work and hoped to get work.  There was 1 day work available and small jobs and Mr Corrigan said he felt that the complainant did not want to get back to work and there was exchange of text messages and correspondence between them.  He said if the complainant had returned there would have been work and they could have sorted it out as the respondent has a large enough circle of clients and they had worked together for over 35 years.  Mr Corrigan said that the complainant was in receipt of over €650 comprising of wages and daily expenses.  Mr Corrigan says he does not have anyone else working for him now.

Under cross examination Mr Corrigan said that the complainant was paid cash of €650 comprising wages and expenses and the complainant did not always get a pay slip and they always had a very agreeable relationship and there was never a contract in place.  He said that the complainant had his own tools and did much of his own work and maybe he had given him tools and he denied that he said the complainant could not use a hammer.  He said that work had wound down and that the complainant was deemed fit to return to work November/December 2022 and said that his phone number had been working around this time and he did not know why the complainant could not get through to him.  Mr Corrigan said he felt the complainant was very disingenuous saying that there was no work available.  He said that he understood what the form RP9 meant about providing 13 weeks work and was actively trying to find work and he said there was not immediately 13 weeks work available.  He said his business naturally contracted and that he does not employ anyone else.

Submissions from parties were received with copious volume of the correspondence exchanged and evidence heard and, whilst I will not be referring to every letter or incident I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.

The complainant submits that his position was made redundant and that the respondent has not paid redundancy payment.  The respondent submits that the complainant resigned his position and that in any event the complainant must decide if his claim is that of redundancy or constructive dismissal.  It was agreed that the complainant did not have written terms of employment.

There was conflict of evidence regarding the gross weekly pay, and it would appear from the limited pay slips that were provided to me that the average weekly gross payment was €511.86.  It was submitted that the complainant had been made redundant and the respondent did not pay the redundancy payment that arose.  The respondent submits no redundancy arose as the complainant was out of work for 18 months and once the complainant was deemed fit to return to work the respondent set out to tender for work and it was impossible to provide work immediately in December 2022 and the complainant did not appear to want to return and put up many obstacles including about tools and insurance.

Section 11. provides that

Lay-off and short-time.

11.—(1) Where 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,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short time for that week.

And Section 12 provides

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

Section 12, —(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.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The complainant commenced employment on 01/09/1986 and the employment relationship seemed uneventful until the complainant alleges, he suffered a shoulder injury on 23/06/2021 which the complainant did not appear to report at the time.  The respondent became aware of this allegation of a workplace injury after a notification through Personal Injuries Assessment Board (PIAB) and the complainant sought medical treatment 21/02/2022 and went out for a shoulder injury repair in August 2021.    It appears that the complainant first sought to return to work in April 2022 and resigned his position in April 2023.  

I am most struck by how a relationship between two people who worked together since 1986 could deteriorate to the extent demonstrated by both parties’ behaviours through their direct communication and by their instructions to solicitors.  Both the complainant and Mr Corrigan gave evidence that there never had been any issues between them and then when the allegation of a shoulder injury arose all of a sudden the relationship soured to an extent that they could not communicate to each other directly, would only communicate through their representatives and even then communication of points of view appeared to be done in a most damaged and aggressive manner. 

The respondent submits that the complainant resigned his position.  The complainant submits that he was left with no alternative but to resign his position as his position was redundant.  I note that around 25/04/2022 the complainant issued a cert confirming his fitness to return to work from his GP, but the respondent appeared to be unhappy with the details contained therein and another medical was arranged for the complainant in May 2022 whereby the complainant was deemed unfit to return to work.   The complainant requested a further medical assessment which did not take place until November 2022 and it would appear that on the one hand the respondent wanted a fitness to return to work certs from the complainant’s gp but then it appeared that the respondent was not going to be accepting any such certs and wanted further referral to the respondent’s medical physician.  There appeared a lack of sense of urgency from the respondent with the complainant requests seeking this further assessment which did not take place until 14/11/2022. 

I note Mr Corrigan’s evidence and it does not seem that he was actively seeking tenders for work at this time when it appeared likely that the complainant would be returning to work, albeit an exact date had not been established.  I note the communication from the respondent dated 05/12/2022 that the respondent “has not tendered for work for a long period of time” albeit the complainant’s communication on 25/09/2022 clearly identified the complainant would soon be returning to work.  I find it also of importance that the respondent advised he did not have work available for the complainant and that he would “hopefully have work in January (2023)” and the direct evidence of Mr Corrigan is that his work has contracted.

The complainant put the respondent on notice including on 15/12/2022 that the complainant was assuming that he was on lay-off and further confirmed this on 18/01/2023 by issuing a RP9.  I find it surprising that the respondent advised on 24/01/2023 through the returned RP9 that it was reasonable to expect that within 4 weeks there would be employment yet, having reviewed all the correspondence both before and after this time, I have seen nothing that points towards the respondent outlining efforts to secure work or more importantly having work available for the complainant. 

It is not lost on me also that there were many occasions where the complainant was not helping matters.  It goes without saying that an employee should expect safe and appropriate tools to work with which the complainant highlighted but it appeared on many occasions that the complainant might appeared to be aggravating the situation by the manner in it appears he was instructing his solicitor to engage with the respondent’s solicitor.  I note the respondent’s representatives’ email of 16/01/2023 outlining same by advising that the “clients should be able to sort this out themselves without (the solicitors) getting involved”.  Further communication followed including on 17/01/2023 the complainant advised that there was only work for one day and the complainant through his solicitor advised on 25/04/2023 that he was resigning his position.  While noting that the respondent failed to respond to this letter suggesting any alternative course for the parties, it would appear to me in all the circumstances of this case more credible taking note of the respondent’s evidence regarding failures to tender and inability to provide work for the complainant that there was no position available for the complainant and that his position was therefore redundant.

Taking all of the evidence and submissions into consideration I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:

Date of Commencement:                          01/09/1986

Date of Termination:                                   25/04/2023

Gross Weekly Pay:                                       €511.86

Lay off owing to covid                                 6 weeks (13/03/2020 to 24/04/2020)

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

CA-00057193-001

I find that the complaint is not well founded and dismiss the complaint.

CA-00057193-002

I find that the dismissal was not unfair and I dismiss the complaint of unfair dismissal.

CA-00057193-003

I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:

Date of Commencement:                          01/09/1986

Date of Termination:                                   25/04/2023

Gross Weekly Pay:                                       €511.86

Lay off owing to covid                                 6 weeks (13/03/2020 to 24/04/2020)

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

Redundancy, constructive dismissal, terms of employment,