Complainant

Respondent

Parties

Ciprian  Ciurca

Northway Personnel Ltd

Representatives

Marius Marosan

No attendance by, or on behalf of, the Respondent at the hearing

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-00061662-001

20/02/2024

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

CA-00061329-001

31/01/2024

The Complainant commenced his employment with the Respondent on 16 March 2016. His employment was terminated on 7 July 2023. The Complainant was paid €807.40 gross per week.

On 20 February 2024, the Complainant referred his claim to the Director General pursuant to section 39 of the Redundancy Payments Acts alleging that he did not receive any redundancy payment.

A hearing for the purpose of the investigation of the Complainant’s claims was scheduled for 18 November 2024.

The Complainant attended the hearing. On the morning of the hearing, the Respondent’s then representative emailed the Adjudication Services of the WRC to say that he was no longer representing the Respondent. He said that it was his understanding that nobody from the Respondent company would be attending the adjudication hearing.

In his email, the Respondent’s former representative asked that the Respondent’s written submissions would be taken into account.

The Complainant started working for the Respondent on 21 September 2016 as a general operative. He worked an average of 44 hours per week and was paid €18.93 per hour. The Complainant worked on a construction site in Co Meath adjacent to Dublin 15 until he was placed on lay-off on 7 July 2023. The Complainant lives in Dublin 12 which was a short drive to his workplace. The Complainant did not have a car, so he got a lift to work with his brother.

After the Complainant was placed on lay-off, he received an email on 18 July 2023 offering him employment in Greystones, Co Wicklow starting the following morning (19 July 2023). The email did not contain any details regarding the job offer, such as hours of work, rates of pay, if transport was provided or costs covered. The Complainant submits that the job he was offered was a considerable distance from his home. The Complainant replied to that email, seeking more details. He received a response requesting him to contact another person who would be able to provide him with the additional information he sought.

The Complainant submits that it was rather strange that the person who asked if he was available for work had no details about the job offered which led the Complainant to question if, in fact, the job was available.

The Complainant submits that the alternative employment he was offered was a significant distance from his original place of work and his home. The Complainant relies on the Labour Court determination in Elena Gabriela Gavril - v - Summeridge Limited RPD213 in support of his contention that the distance he would be required to travel to the alternative workplace was excessive.

When the Complainant sought payment of redundancy, the Respondent sent him further offers of employment and promised to sort out his employment situation. The Respondent sought details of the Complainant’s PPS number.

The Complainants believes that the Respondent had no intention of providing viable alternative employment and he felt entitled to claim redundancy, as per section 7 of the Redundancy Payments Act 1967, as amended (the “Act”), which provides as follows:

" 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 two 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 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, or 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.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks."

The Complainant further submits that section 12 of the Redundancy Payments Act, 1967 provides:

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

The Complainant sent the Respondent notice of his intention to claim redundancy using the form RP77 six weeks after being placed on lay-off. He did not receive a reply from the Respondent. The Complainant submits that by submitting a form RP77, his intention was clear.

The Complainant submits that in May 2024 he sent the Respondent the correct form (RP9) to claim redundancy. At the hearing, the Complainant provided proof of delivery from An Post.

The Complainant submits that it does not matter which form he used to notify the Respondent of his intention to seek redundancy as the redundancy claim forms are not statutory forms.

The Complainant relies on the Labour Court case Northway Personnel Ltd and Octavian Nacu RPD2418 which he asserts is identical to this case. In the Nacu case the Labour Court found as follows:

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 thetime 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 …

The Respondent did not attend the adjudication hearing. The Respondent furnished the following written submission in advance of the hearing which was shared with the Complainant:

Background

The Respondent is an employment agency specialising in the construction sector. The Complainant was an agency worker working for one of the Respondent’s clients in Co Meath adjacent to Dublin 15. 

The Complainant is employed under a contract of employment by virtue of which he may be assigned to work for, and under the direction and supervision of, a person other than the Respondent. By the very nature of his employment as an agency worker, it is reasonable that the Complainant would be offered employment/directed to work in various locations and that the duration of each placement would depend on the labour requirements of the Respondent’s clients.

Alternative employment

The Respondent’s client’s requirements for agency work diminished greatly as the site in Co Meath which the Complainant was employed was nearing completion. The Complainant’s last day of employment was 7 July 2023. It was the Respondent’s expectation that alternative employment would be secured for the Complainant with one of the Respondent’s other clients.

On 18 July 2023 a general operative/handyman position was offered to the Complainant on a new housing development located in Greystones, Co Wicklow starting on 19 July 2023. The Complainant did not respond to that offer.

On 6 November 2023 general operative and snagger positions for one of the Respondent’s main clients based in Blessington, Co Wicklow and Greystones, Co Wicklow were offered to the Complainant. The Complainant responded as follows on same day:

“As my payslips say that my position is a supervisor if you have supervisor position I’m happy to start as soon as.”

In email correspondence dated 9 November 2023, the Respondent clarified the nature of the available positions. The Respondent explained to the Complainant that as an agency worker, work roles are subject to its clients’ needs.

The Respondent submits that the Complainant did not consider the offers of alternative employment as he is required to do under section 15(2A) of the Redundancy Payments Act 1967, as amended (the “Act”). The Respondent submits that the Complainant is not entitled to redundancy due to his refusal to accept alternative employment.

Notice of intention to claim redundancy

The Respondent submits that as the Complainant was not dismissed by the Respondent, the only other option open to the Complainant to claim redundancy was to provide the Respondent with notice in writing of his intention to claim redundancy. The Respondent asserts that the Complainant has not served such a notice.

The Respondent submits that it was not given the opportunity, in accordance with section 12 of the Act to serve a counter notice indicating that the employee would enter, in the required timeframe, a period of employment as per section 13 of the Act. 

It is submitted, therefore, that the Complainant is not entitled to redundancy.

The Respondent relies on the adjudication decision in Octavian Nacu v Northway Personnel Ltd ADJ-00047195.

The question for me to decide is whether the Complainant is entitled to a redundancy payment or whether the refusal of the offer of alternative employment was unreasonable.

Section 15(2) of the Redundancy Payments Act 1967, as amended, provides that an employee is not entitled to redundancy if:

“(a) his employer has made to him in writing an offer to renew the employee’s contract ofemployment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.”

In essence, in reaching a decision in this case, I am required to consider (i) the suitability of the offer of alternative employment made by the Respondent to the Complainant and (ii) whether the Complainant’s decision to this offer was reasonable in all the circumstances. 

The English EAT has provided some useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation, holding that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”.

With regard to the first component of the test, I am guided by the Labour Court’s determination in Cinders Limited and Celina Byrne (RPD1811), where the Court found that by offering the Complainant in that case an option to retain her in their employment, the Respondent, from an objective perspective, satisfied the first leg of the test proposed by the English EAT in Cambridge. Likewise in this case, the Respondent offered the Complainant an alternative position in Greystones and Blessington to try to retain him in its employment.  I find, therefore, that the Respondent satisfied the first part of the test.

The second part of the test concerns the Complainant’s perspective on the proposed alternative role.  I must now determine, therefore, whether the Complainant’s refusal to accept the alternative position put forward by the Respondent was subjectively justified. 

I note that the Complainant worked in Co Meath, adjacent to Dublin 15 and lives in Dublin 12. The alternative employment which was offered to him by the Respondent was located in either Greystones, Co Wicklow or Blessington, Co Wicklow which would necessitate a substantial increase in his daily commute. I further note that no meaningful information on the alternative positions was provided to the Complainant.

I am not satisfied that the offer of alternative employment in Greystones or Blessington to an employee who worked in Co Meath and lived in Dublin 12, constitutes a reasonable offer given the more onerous commute involved. Furthermore, the sparseness of the information on the alternative position provided by the Respondent did not in any way address the Complainant’s concerns about the viability of the alternative position that had been offered to him. 

For the avoidance of doubt, I will address the matter of the Complainant using the incorrect form to notify the Respondent of his intention to seek redundancy. In this regard, I am guided by the findings of the Labour Court in Northway Personnel Ltd and Octavian Nacu RPD2418 where, overturning the Adjudication Officer’s decision on which the Respondent relies, the Court found that:

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.

Accordingly, I find that the fact that the Complainant initially used the incorrect form to notify the Respondent of his intention to seek redundancy makes no material difference to his complaint.

Taking all of the foregoing into consideration, based on the uncontested evidence of the Complainant, I am upholding the Complainant’s appeal.

CA-00061662-001

Section 39 of the Redundancy Payments Acts 1967, as amended, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Based on the uncontested evidence of the Complainant, I allow the Complainant’s appeal. I declare that the Complainant is entitled to a statutory redundancy lump sum payment calculated in accordance with the following criteria:

·       Date of commencement: 16 March 2016

·       Date of termination: 7 July 2023

·       Gross weekly wage: €807.40 (subject to the statutory wage ceiling of €600 per week)

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00061329-001

I find that this complainant is a duplicate of CA-00061662-001 in respect of which I have already made a decision. I declare, therefore, that this complaint is not well founded.

Redundancy – non-attendance by Respondent