EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Krystyna Pasiak, (appellant) RP85/2013
Against
Noel Recruitment (Ireland) Limited (respondent)
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Mcgrath B.L.
Members: Mr F. Moloney
Mr. P. Woods
heard this appeal at Dublin on 14th March 2014
Representation:
_______________
Appellant(s) : Mr Blazej Nowak, Polish Consultancy Enterprise, 107 Amiens
Street, Dublin 1
Respondent(s) : Ms. Mary Seery-Kearney, Damar Consultancy Limited,
Shamwari, 4 Redhills Park, Ellistown, Co. Kildare
The decision of the Tribunal was as follows:
The Tribunal has carefully considered the comprehensive evidence adduced during the course of this hearing.
The claimant is looking for an order for the payment of her statutory redundancy which she says accrued to her on the 9th February, 2012.
Many matters of fact were agreed as between the parties. The claimant was engaged by the respondent recruitment agency from in or about December 2005. Amongst other things, the respondent provided recruited staff to certain religious and health institutions and the claimant was assigned to a number of these institutions in her capacity as Catering Assistant. Between 2009 and 2011 it is accepted that the claimant worked in Our Lady’s Hospital, Crumlin. There had been no gaps in the claimant’s employment from 2005 to 2011 as the Recruitment Agency had had many clients in need of its services over that period. By the end of 2011, the claimant worked a 39 hour week at a gross of €394.
Unfortunately during the course of 2011, the HSE in an effort to effect cutbacks, directed that the outsourcing of employment was no longer to be allowed.
In light of this development, the claimant was notified that her two year assignment with Our Lady’s Hospital would be coming to an end on the 31st December, 2011.
There can be no doubt that the respondent’s own position at the start of 2012 was more precarious as a number of its clients had had to dispense with the services of the recruitment agency in light of the HSE withdrawal of funds.
That said, there can be no doubt that as of the 1st January, 2012 the employer held a reasonable belief that the cessation of works would not be permanent and it was made known to the claimant that the cessation would be temporary.
The Tribunal finds as a matter of fact, that the situation gave rise to a lay-off and that all the criteria set out in section 11(1) of the Redundancy Payments Act of 1967 are satisfied. The Tribunal cannot reconcile the acceptance on the one hand by the respondent of the fact that an employer/employee relationship has existed between the parties since 2005 and the contemporaneous assertion (through the ‘little blue book’) that “no contract shall exist” in a situation where a client terminates an assignment (as has happened here).
“Contract” herein is not defined and the Tribunal has not been persuaded that a termination of assignment can somehow negative the employer/employee relationship and /or the contract of employment.
In short, the Tribunal finds the claimant was put on temporary lay-off on the 1st January, 2012.
It is accepted by both parties that on the 9th January the respondent company wrote an open letter for the claimant such that would allow the claimant seek social welfare during the lay-off period. The letter is typical of its sort and the Tribunal accepts that the intent is to allow an employee avail of social welfare when an employer has no work available but hopes to reverse this situation.
Then, on 31st January, 2012 the claimant served the respondent with a standard RP9 form which she was entitled to do in circumstances where a four week period of no employment had elapsed. It is accepted that the respondent received the RP9 and the Tribunal assumes same was delivered by at least 2nd February, 2012. Therefore, from 2nd February to 9th February, the respondent had seven days to contest the claimant’s application for redundancy and to confirm that employment will be offered within four weeks. It is noted that there is an obligation on the employer, in seeking to refute the claim for redundancy, to make an offer of at least thirteen weeks employment which will not be subject to lay off or short time. This last obligation is very important as much time was given over to hearing evidence of two offers of work made by the respondent, which at best would only have constituted short time employment. The reality was that the employer was, in February 2012, not in a position to offer the claimant thirteen 39 hour weeks of employment as per her pre lay-off employment.
In the circumstances, the Tribunal is absolutely satisfied that the claimant was entitled to consider her position to be made redundant and entitled to make a claim for statutory redundancy in accordance with the following details:
Date of commencement: 5th December 2005
Date of termination: 10th February 2012
Gross weekly pay: €394.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)