RPD264

RPA/25/28

DETERMINATION NO.  RPD264

PARTIES:

DIVISION:

Chairman:	Ms Connolly
Employer Member:	Ms Bisiwe
Worker Member:	Ms Hannick

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00057367 (CA-00069706-001)

BACKGROUND:

The matter before the Court is an appeal by “Nator Construction Ltd. T/A N Development” of a decision of an Adjudication Officer made in relation to a complaint by a former employee, Mr Wieslaw Pietrzak, under the Redundancy Payments Act 1967 (‘the Act’). The Adjudication Officer held that the complaint was well founded.

Nator Construction Ltd. T/A N Development appealed the decision to the Labour Court. The Labour Court conducted a hearing on 14 August 2026. The Court heard submissions from both sides and sworn testimony from Mr Wieslaw Pietrzak, who was assisted by a Polish language interpreter, and from Mr Marcin Natorski, a director of the Respondent company.

In this Decision the parties are referred to as they were at first instance. Hence, Mr Wieslaw Pietrzak is referred to as “the Complainant” and Nator Construction Ltd. T/A N Development as “the Respondent”.  

DETERMINATION:

1. Preliminary Matter

The Respondent submits that the Court has no jurisdiction to hear the appeal as (i) the incorrect Respondent has been impleaded by the Complainant, and (ii) without prejudice to that fact, any complaint under the Act is manifestly out of time.  Rule 34 of the Labour Court Rules provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

By agreement with the parties, the Court proposed that it would hear and decide the preliminary matter in the first instance. It advised the parties if it decided that the complaint was lodged to the WRC within time, a further hearing would be scheduled to consider the substantive appeal. If the Court decided that the complaint was lodged outside the time limits set down in the Act, the complaint is out of time and statute barred.

2.         Summary of Respondent’s Case

Nator Construction Ltd is not the proper respondent to these proceedings, as it was not the Complainant’s employer at the time his employment terminated in December 2024.

The Complainant was employed by Nator Construction Ltd from 2017 to 27 February 2023, when he was employed as a General Operative on construction sites. His employment ended on 27 February 2023 following the completion of work on construction sites and Nator Construction Ltd ceased operations. It is accepted that no written notice of termination issued to the Complainant at that time; the Complainant’s contract terms expressly provided that his employment would terminate upon completion of the relevant construction projects.

The Complainant was employed thereafter by another entity - NDesign and Fabrication Ltd - which is a separate company disassociated from Nator Construction Ltd. The Complainant worked as a Panel Fabricator producing façade panels in a warehouse. In July 2023, the Complainant went on annual leave. Thereafter, he was absent on sick leave. He never returned to work for NDesign and Fabrication Ltd and his employment terminated on 23 December 2024 due to his ongoing absences.

The Complainant was not employed by Nator Construction Ltd. on 23 December 2024. As he was not in an employment relationship with the Respondent on that date, any claim for redundancy payment arising from the termination of his employment on 23 December 2024 cannot succeed against Nator Construction Ltd.

Any claim for redundancy payment in respect of his employment as a General Operative with Nator Construction Ltd, which terminated on 27 February 2023, is out of time and statute barred.

The Respondent submits that the Complainant cannot claim ignorance of his employer’s identity. The Complainant clearly understood the transition of his employment to NDesign and Fabrication Ltd and the identity of his new employer. The Complainant agreed a new hourly rate of pay and specifically requested that his accrued holiday entitlement be transferred from Nator to NDesign. The Complainant undertook substantially different warehouse duties, which included packing materials with the NDesign logo and handling NDesign documentation. The NDesign name was clearly shown on all payslips, along with the new employer registration number. Revenue correspondence addressed to the Complainant clearly showed NDesign as the employer. 

3.      Evidence of Mr Marcin Natorski

Mr Marcin Natorski is the owner and director of two companies – “Nator Construction Ltd” and “NDesign and Fabrication Ltd”. The companies are separate legal entities. “Nator Construction Ltd is a construction company, which ceased operations in 2023. NDesign operates within the panel fabrication and manufacturing sector.

The Complainant was employed by “Nator Construction Ltd” in 2017 as a general operative on fixed term contracts working on different construction sites. By December 2022, work on construction sites had ceased and Mr Natorski told the Complainant verbally that his employment was coming to an end. At that point, the Complainant and Mr Natorski were the only employees left. Mr Natorski spoke with the Complainant again in January 2023 and again in February 2023. It was clear that there was no construction work left and “Nator Construction Ltd” was ceasing operations.

Mr Natorski offered the Complainant a role in his fabrication company “NDesign and Fabrication Ltd”. They discussed a role working in the fabrication workshop and agreed a new salary rate. All other terms and conditions remained the same. Thereafter, the Complainant worked for and was paid by “NDesign and Fabrication Ltd”. The arrangement to change employer was not confirmed in writing. The conversations were conducted in the Complainant’s native language.

The Complainant was aware that he was changing employer. He requested that he retain his annual leave to take at a later point. Mr Natorski agreed to that request and, as a result, the Complainant was paid his accrued annual leave by “NDesign and Fabrication Ltd” as reflected in his payslip in July 2023. The Complainant sent a text message to Mr. Natorski reminding him to transfer "about 100h of outstanding holidays" from the Nator period to his current payslip from NDesign.

Mr Marcin said that he retained the name “Nator Construction Ltd” on his business letterhead for commercial reasons as it was an established a trading name recognised by other companies.

4.      Summary and evidence from Complainant’s Case

The Complainant went on holidays to Poland in July 2023 where he suffered an injury to his hand.  Afte that he was on sick leave and sent sick certificates to his manager, Martin Natorski, via WhatsApp.

On 16 December 2024 the Complainant received correspondence that he was being dismissed on 23 December 2024. The complainant requested payment for his outstanding holidays in 2023 and 2024, as well as redundancy pay.

The Complainant was never informed of any change to the company name or business profile in 2023. The termination letter refers to two companies:  Nator Construction Ltd, which carried out construction work, and NDesign and Fabrication Ltd, which operates the warehouse. The Complainant never received a new employment contract with revised terms and conditions of employment or an amendment to his existing contract of employment about any changes.  Before 2023, the Complainant was required to separate his working hours between construction site and warehouse work.  This indicates that he worked for two different companies at that time.  He was paid one hourly rate for construction work and a different hourly rate for warehouse work. 

The Complainant was paid by and received payslips from Nator Construction Ltd. He did not receive payslips from NDesign and Fabrication Ltd. The Complainant’s Revenue account shows the Complainant registered as an employee with Nator Construction Ltd on 24 October 2017 until his employment ended on 31 March 2020. He was re-registered as an employee on 30 April 2020.

Under cross examination, the Complainant said that he worked on a project-by-project basis on sites and in the warehouse. He could not recall when he stopped working in constructions sites or when started working in the workshop. He accepted that from March 2023 onwards he worked solely in the warehouse. When asked why he referenced the two seperate entities in his submissions to the Court, the Complainant said that he became aware of the existence of NDesign and Fabrication Ltd when on holidays in Poland in 2023. He then corrected that statement to say that it was December 2024. 

The Complainant did not remember agreeing a new rate of pay. He accepted that he was paid €16.00 per hour when he stopped working on construction sites and that he was paid €14.00 per hour before then.  He did not ask that his annual leave transfer from one company to another. He asked for his leave to be paid not transferred.

The Complainant confirmed that he lodged documentation to the Labour Court from the Revenue Commissioners confirming Nator Construction Ltd was his employer in the period from 2017 to 2023 and that NDesign and Fabrication Ltd was his employer in 2023 – 2024.  He said that he stated that his employment had ended on 27 February 2023 in error. His employment ended in December 2024.

5. The Relevant Law

Section 7 of the Redundancy Payment Act sets out a general right to a redundancy payment 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,

6.      Deliberation

This is an appeal of an Adjudication Officer’s decision in relation to a complaint made by the Complainant against “Nator Construction Ltd. T/A N Development”. As the Adjudication Officer’s decision reflects some confusion about the trading name and identity of the employer in this case, the Labour Court took some time with the Complainant, who is a lay litigant, to clarify the name of the employer and also the date of termination of employment to which his complaint relates.

After a break in the proceedings, the Complainant confirmed that his complaint relates to a claim for statutory redundancy from Nator Construction Ltd – the Respondent cited on the Adjudication Officer’s decision - on foot of the termination of his employment by that entity on 23 December 2024. Accordingly, the first matter for consideration by the Court is whether the Complainant was employed by Nator Construction Ltd on 23 December 2024.

The Court heard from the Respondent that there are two distinct legal entities of relevance to this matter – Nator Construction Ltd and NDesign and Fabrication Ltd. Both companies share the same director, Mr Marcin Natorski.

It is accepted that the Complainant commenced employment with Nator Construction Ltd in 2017. The Complainant contends that he remained in the employment of that entity until his employment ended on 23 December 2024. His evidence was that he always understood that he was employed by Nator Construction Ltd.

Mr Natorski, on behalf of Nator Construction Ltd, contends that the employment relationship with the Complainant ended on 27 February 2023, when that entity ceased operations. As the termination of the employment contract between the Complainant and Nator Construction Ltd on 27 February 2023 is in dispute, the onus rests with the Respondent to demonstrate that the employment relationship terminated on that date.

It is accepted that the Respondent did not issue written notice of termination of the employment relationship with Nator Construction Ltd to the Complainant prior to 27 February 2023. The Respondent relies on a specific purpose contract of employment dated 2019 that expressly provided that the Complainant’s employment with Nator Construction Ltd would terminate upon completion of the relevant construction projects. 

Mr Natorski’s evidence was that the Complainant was fully aware that his employment with Nator Construction Ltd was ending, as he verbally informed the Complainant that his employment with Nator Construction Ltd was coming to an end in December 2022 and did so again in January 2023 and February 2023. He said that the conversations were conducted verbally in the Complainant’s native language and that it was clear that Nator Construction Ltd was ceasing operations as there was no construction work left and all other employees had already ceased work.

The Complainant denies that any conversations took place regarding the end of his employment with Nator Construction Ltd.

The Respondent contends that the Complainant was offered employment in a new role with another legal entity, NDesign and Fabrication role. That matter is in dispute. The Complainant denies that he commenced employment with NDesign and Fabrication Ltd after February 2023 or that he was ever notified of a change of employer.

It is accepted that the Complainant never received a contract of employment in writing from NDesign and Fabrication Ltd. Mr Natorski’s evidence was that the Complainant was fully aware that he commenced employment with NDesign and Fabrication Ltd, as they agreed a new hourly rate of pay and the Complainant undertook substantially different warehouse duties, which included packing materials with the NDesign logo and handling NDesign documentation. 

While the Complainant denied that he worked in a different role, he accepted under cross-examination that he stopped working on construction sites in and around February 2023, after which he worked in a workshop/warehouse environment. The Complainant’s evidence was that he could not remember agreeing a new rate of pay but accepted that his rate of pay changed after he stopped working on construction sites.

The Complainant’s payslip for July 2023 reflects that he was paid accrued annual leave by NDesign and Fabrication Ltd. Mr Nikorski’s evidence was that he agreed to a request by the Complainant to allow him to retain holidays accrued during his employment with Nator Construction Ltd to take at a later point. The Complainant’s evidence was that he never asked that his annual leave transfer from one company to another and that he was simply seeking payment of his owed holidays. 

The Court struggled with the evidence provided by both parties. On balance the Court accepted the evidence of Mr Natorski, as it found the Complainant’s testimony was contradictory at times. The Complainant’s testimony that he was never paid by NDesign and Fabrication Ltd was contradicted by Revenue Commission documents and payslips opened to the Court.

The Court notes that Revenue records state that the Complainant left the employment of Nator Construction Limited on 27 February 2023. The Complainant’s corresponding payslips demonstrate that he was paid by Nator Construction Limited up to February 2023. 

The Court notes that Revenue records state that the Complainant commenced employment with NDesign and Fabrication Ltd on 1 March 2023. The Complainant’s corresponding payslips demonstrate that he was paid by NDesign and Fabrication Ltd until his employment ended in December 2024.

Having regard to the submissions made and evidence tendered the Court finds, on the balance of probabilities, that the Complainant’s employment with Nator Construction Ltd terminated on 27 February 2023. 

No application was made to the Court to extend the statutory timeframe for considering the within complaint.  In that regard, the Complainant confirmed that his complaint relates to a claim for statutory redundancy from Nator Construction Ltd on foot of the termination of his employment by that entity on 23 December 2024. Accordingly, any claim for statutory redundancy payment in respect of his employment with Nator Construction Ltd, which terminated on 27 February 2023, is out of time and statute barred.

In light of the above, the Court finds that the Complainant was not an employee of Nator Construction Ltd on 23 December 2024.  As a result, his claim for a statutory redundancy payment on foot of the alleged termination of his employment on 23 December 2024 has no basis and is not well founded.

7. Finding

For the reasons set out above, the Court finds that the complaint is not well founded. Accordingly, the appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
BB	______________________
15/10/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Bernard Byrne, Court Secretary.