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FULL RECOMMENDATION
PARTIES : CITYJET DESIGNATED ACTIVITY COMPANY T/A CITYJET DIVISION :
SUBJECT: 1. Appeal Of Adjudication Officer Decision No. ADJ-00029692, CA-00039306-001 This is an appeal on behalf of Cityjet Designated Activity Company T/A Cityjet (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00029692, dated 5 October 2021) under the Redundancy Payments Act 1967 (‘the Act’). Notice of Appeal was received by the Court on 6 October 2021. The Court heard the appeal in a virtual courtroom on 4 January 2022. Mr McArdle (‘the Complainant’) submits that the Respondent failed to afford him his full entitlements under the Act when his position with the Respondent was made redundant on 15 July 2020. In his referral to the Workplace Relations Commission, dated 21 August 2020, the Complainant formulated his complaint under the Act as follows: “Upon being made redundant, I was entitled to 36.5 days annual leave, confirmed by the company. The company decided to only pay for 29 of these days. This left a deficit of 7.5 days @€327.14 per day unpaid, a total of €2,453.55 unpaid. (€327.14 is the company’s calculation with which I agree with (sic)) I have confirmation of my 36.5-day balance and the calculation applied from the company … I am raising this complaint after first consulting with the HR department in Cityjet, seeking my owed holiday pay upon redundancy. The Company replied that it was only paying the 29 days and not the full entitlement of 36.5. I have email communication supporting this.” The Adjudication Officer upheld the complaint at first instance and awarded the Complainant compensation of €2,453.55 having determined that he was entitled to rely on section “39 of the Organisation of Working Time Act 1997 [to consider] this complaint as being heard under the Organisation of Working Time Act and not the Redundancy Payments Act 1967 as submitted.” Section 39 of the Organisation of Working Time Act 1997 This section provides: “39.— (1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court. (2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.” It is clear from the wording of section 39(2), that the subsection empowers a relevant authority (including an Adjudication Officer of the Workplace Relations Commission), to amend “the name of the employer concerned or any other material particular” included in a (written) decision of that relevant authority. The subsection does not give an Adjudication Officer jurisdiction to substitute his or her choice of enactment for the enactment under which a complainant has referred a complaint to the Workplace Relations Commission for adjudication. Discussion and Decision The Complainant advised the Court that in referring his complaint at first instance, he was relying on section 19 of the Act. This section provides: “19.— (1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or whereby 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. (3) The Minister may by order amend Schedule 3.” The Complainant, in answer to a question from the Court, confirmed that he understood that section 19 makes provision for payment of a statutory lump sum to an employee who qualifies under the Act and is made redundant by his employer. The Complainant further accepted that the section does not make provision for any other payments such as in respect of accrued statutory or contractual annual leave. On the basis of the foregoing, the Court finds that the within complaint was misconceived and the Adjudication Officer erred in relying on section 39(2) of the Organisation of Working Time Act 1997 to decide the matter under an alternative enactment. The appeal, therefore, succeeds and the decision of the Adjudication Officer is set aside. The Court so determines.
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