Complainant

Respondent

Parties

Rory  Callaghan

Merdeka Security T/A CU Group Fire & Security

Representatives

Self-represented

Jason Enright, Director

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-00067347-001

12/11/2024

The Complainant referred his complaint to the Director General of the WRC on 12 November 2024 alleging that he did not receive any redundancy payment.

The Respondent rejects the claim.

The Complainant submits that he commenced his employment with the Respondent on 12 August 2019. He alleges that his employment was terminated by reason of redundancy, but he did not receive a redundancy payment he was entitled to.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said, under affirmation, that he commenced his employment on 12 August 2019. He worked 4 years for the Respondent as an apprentice and thereafter some 8 months as an employee. At the date of the termination of his employment he was paid €650 gross weekly.

The Complainant said that the apprenticeship entailed only on the job training, there was no external training or exams. Initially he was paid €270 per week. This increased to €470 in year 3 and 4. He was then paid €650 gross per week as an employee. The Complainant said that he concluded his apprenticeship in December 2023 and became an employee thereafter.

The Complainant said that he was informed on 3 September 2024 that he was being dismissed on 4 September 2024.

The Complainant said that a family member told him about redundancy entitlements. The Complainant contacted the Respondent about it but was told that he was not entitled to any payment.

The Complainant disputed the date of commencement of his employment as submitted by the Respondent. He said that he started working for the Respondent on 12 August 2019 and undertook to deliver documentary evidence to confirm same.

Post-hearing the Complainant furnished an Amended Tax Credit and Universal Social Charge Certificate – 2020 dated 21 August 2021. In the section entitled TAX CREDIT AND UNIVERSAL SOCIAL CHARGE CERTIFICATE For the period 21 August 2020 to 31 December 2020 on a Week 1/Month 1 basis the document confirms that the Complainant was employed by the Respondent.

The document was exchanged with the Respondent.

Summary of direct evidence and cross-examination of Mr Enright, Director

Mr Enright gave sworn evidence on behalf of the Respondent. Mr Enright disputed the date of the commencement of employment as submitted by the Complainant. He said that the Complainant started working for the Respondent in August 2020, albeit there was no documentary evidence available at the hearing to verify the date. Initially it was to establish if the Complainant was suitable for apprenticeship.

Mr Enright said that the Complainant commenced his apprenticeship in August 2021 but he was laid off during Covid-19 pandemic. Mr Enright confirmed that there was no formal, structured apprenticeship. It was on the job training with some suppliers providing training after which they would issue certification of completion.

Mr Enright said that the Complainant failed his fire course exams conducted by an external company. The successful completion of the course was necessary to progress with his apprenticeship. The Complainant could not do his job without the completed course. There were three levels of examination and this was an initial entry level exam.

Mr Enright said that the Respondent sat down with the Complainant and told him that he could not continue with his apprenticeship. The Complainant was offered another role within the company. He moved to be an assistant to a qualified senior technician.

Mr Enright said that the Respondent had a lot of jobs in Dublin but travelled also to Galway, Limerick and Cork. Mr Enright said that work in Dublin started to reduce. Then projects in Cork and Limerick were completed and the Respondent had to reduce staff.

Mr Enright said that the Complainant was given 2 weeks’ notice and got the option to take a payment in lieu, which the Complainant chose. He was paid any outstanding annual leave.

Mr Enright said that that there was a move from the apprenticeship to the new role. As a result, the Respondent’s view was that there was no continuity of service, and the Complainant did not have the service required to be entitled to redundancy.

Post-hearing the Respondent furnished copies of the following:

·       A document entitled Employment Contract – Rory Callaghan

·       Employment Contract

·       Submission of the Complainant’s pay and deductions to the Revenue Commissioners dated 20 August 2020

The documents were exchanged with the Complainant.

The Redundancy Payments Acts 1967 (as amended) and Regulations made thereunder provide that in order to qualify for a statutory redundancy payment, an employee must (1) have at least two years’ continuous service, excluding any period of employment with that employer before the age of 16 years (2) be in employment which is insurable under the Social Welfare Acts, (3) be over the age of 16 and (4) have been made redundant as a result of a genuine redundancy situation.

The relevant portion of Section 7 of the Redundancy Payments Act 1967 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 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,

Section 19 of the same Act provides for the payment of a lump sum by the employer as follows:

19(1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or where by virtue of Section 12 an employee becomes entitled to redundancy payment, his employer shall pay to him an amount which is referred to in this Act as the lump sum.

(2) Schedule 3 shall apply in relation to the lump sum.

S.I. No. 695/2004 - Redundancy Payments (Lump Sum) Regulations 2004 sets out the current rates.

Date of commencement

The parties were in dispute regarding the date of commencement of the Complainant’s employment. The Complainant asserted that he started on 12 August 2019. The Respondent, on the other hand, asserted that he started on 20 August 2020. The Complainant undertook to deliver post-hearing Revenue Commissioners’ records to confirm the date of commencement of his employment with the Respondent. Regrettably, the document furnished by the Complainant dated 21 August 2020 makes no reference to the start of his employment. All that can be ascertained from the document is that as of 21 August 2020 the Complainant was employed by the Respondent.

The Respondent furnished post-hearing copies of two documents that, it asserted, were the Complainant’s contracts of employment. Neither of the documents was signed nor dated by either party. One of the documents does not have even the Complainant’s name. I find that the documents are of no evidential value in the context of the Respondent’s assertion that the employment commenced in August 2020.

The Respondent also furnished a copy of a submission of the Complainant’s pay and deductions to the Revenue Commissioners dated 20 August 2020. The Respondent argued that this was the correct date of the commencement, and it was the first submission and payment made to the Complainant. 

Regrettably, none of the documents furnished enable me to ascertain definitively what was the correct date of commencement of the Complainant’s employment with the Respondent. However, in the absence of more accurate records and on the balance of probabilities, I accept the Respondent’s assertion that the Complainant’s employment started on 20 August 2020.

Redundancy

There was no dispute that initially the Complainant worked on reduced pay as an “apprentice”, albeit it seems that the arrangement was not an apprenticeship per se as a programme of formal education and training but rather an internal arrangement whereby the Complainant was trained on the job. He then became an employee in January 2024.

There was no dispute that the Complainant was informed by the Respondent on 3 September 2024 that his employment would terminate on 4 September 2024. He was paid in lieu of his notice.

While Mr Enright made some suggestion that there were concerns with regards to the Complainant’s performance, at the hearing it was confirmed on behalf of the Respondent that work in Dublin started to decrease. By Mr Enright’s evidence, once the projects in Cork and Limerick completed, the Respondent had to reduce staff numbers. As a result, the Complainant’s employment was terminated.

The Respondent believed that the Complainant’s service as an “apprentice” was not counted for the purposes of redundancy. As the Complainant became an “employee” in January 2024, it was the Respondent’s view that he was not entitled to redundancy.

The Act lists the classes of persons to which this it applies.

4.—(1) Subject to this section and to section 47, this Act applies to—

(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005,

(b) employees who were so employed in such employment in the period of four years ending on the date of termination of employment, and

(c) employees who have attained the age of 66 years and are in employment that would be insurable for all benefits under the Social Welfare Consolidation Act 2005 but for—

(i) their attainment of that age, or

(ii) the fact that the employment concerned is excepted employment by reason of paragraph 2, 4 or 5 of Part 2 of Schedule 1 to that Act.

Section 2 of the Act provides the following definitions:

"employee" means a person of 16 years and upwards who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or F5[education and training board] shall be deemed to be an employee employed by the authority, health board or F5[education and training board], as the case may be;

"contract of employment" means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing and references to "contract" shall be construed accordingly;

It is clear that, even if the Complainant was an apprentice, which I am not saying he was, he was encompassed by the protections of the Act.

I, therefore, find that the Complainant as entitled to a redundancy lump sum on cessation of his employment.

I allow the Complainant’s appeal. I decide that the Complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts based on the following criteria: 

Date of commencement: 20 August 2020

Date of termination: 4 September 2024

Gross weekly remuneration: €650

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

Redundancy-