ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001228
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00001647-001 |
22nd December 2015 |
Date of Adjudication Hearing: 30th March 2016
Workplace Relations Commission Adjudication Officer: Sean Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act 1967 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Submission:
I was put on short time working from 19th January 2015. After remaining on short time working for the following 4 consecutive weeks I submitted a written notice of intention to claim a redundancy lump sum to my employer, but she provided no response to that notice. Accordingly, I am entitled to receive a redundancy lump sum. With regard to pay, I was paid €97 per day and for the greater part of my employment I worked 4 days per week but my days were reduced in recent years to the point of short-time working. I never accepted these reduced hours as being my normal working hours. |
The Complainant said that he began working for the Respondent on 29th March 2003. He was employed on the basis of working a 4 day week and this continued until 2010, when the Respondent informed him that “times were difficult” he was having to reduce the Complainant’s working time to 3 days per week and said it was just a “temporary reduction” in working hours. The Complainant was not happy at this reduction in hours, but as it was only temporary he expected to have his working hours restored and he frequently asked when his normal working hours would be restored. He also expressed his wish and his desire to return to his normal contractual working hours to the Manager of the Shop.
In 2014, the Complainant was told that his working hours were being reduced further to 2 days per week. The Complainant was unhappy with this and he continued to request a restoration of his contractual hours with his Manager and with the Owner. The Manager was able to give him additional hours, e.g. covering holidays and absences etc., so that by the end of the 2014 his hours equated with about 3 days per week for that year.
After the 2014 Christmas break the Complainant was informed that as business was quiet his hours were reduced to 1 day per week from 19th January 2015. After these reduced hours had continued for more than 4 consecutive weeks, on 23rd February, the Complainant sent a RP9 Notice Form to the Respondent seeking a redundancy payment on the grounds of the ‘short time’ working, but he received no response to this.
The Complainant said that according to the 2 guides to the Redundancy Payments Scheme, issued by the Department of Trade, Enterprise and Innovation and the Department of Social Protection where an employee does not accept reduced working hours as her/his ‘normal’ working hours and is consistently seeking to be put back on ‘normal’ ‘full-time’ working hours she/he is then deemed not to have accepted reduced working as ‘normal’ working hours - and in these circumstances redundancy payments should be calculated a ‘normal’ ‘full-time’ working hours. The Complainant said that he never accepted the reduction in his normal contractual hours of 4 days per week and was always seeking to have his normal working hours restored - and he submitted that accordingly his normal working hours was 4 days per week, which in turn made/makes his normal weekly rate of pay €388.00c (€97 x 4).
The Complainant said that in accordance with the provisions of the 1967 Act, as amended, the reduction of his working hours to 1 day per week resulted in him being placed on ‘short-time’ working as defined in the Act, i.e. less than half his normal working hours. After the period of more than 4 consecutive weeks on ‘short time’ working, the Complainant, using Form RP9, served written notice on the Respondent that he intended to claim redundancy because of ‘short-time’ working as defined. The Respondent did not respond to this notice within 7 days or at all and did not restore the Complainant to not less than 13 weeks of full time working within 4 weeks of receiving the notice. The Complainant submitted that accordingly he was entitled to a redundancy and a redundancy payment in accordance with the provisions of the Redundancy Payments Acts.
The Complainant sought a favourable decision.
Summary of Respondent’s Position:
The Respondent was not present or represented and they sent no submissions.
Findings and Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Act 1967 requires that I make a decision in relation to the Complainant’s entitlement to a Redundancy Payment in accordance with the provisions of the Redundancy Payments Acts 1967 to 2007.
The Respondent was not present or represented at the Hearing and they sent no submissions, accordingly I only have the evidence of the Complainant to rely upon in these matters.
Based on the uncontested evidence of the Complainant the complaints are well founded and they are upheld.
I find and decide that the Complainant’s normal working week was 4 days per week and that his weekly rate of pay was €388.00c (€97 per day multiplied by 4 days per week). I also find and decide that the Complainant was placed by the Respondent on ‘short time’ working as defined by the enforced reduction of the Complainant’s working week and that he consistently sought to be restored to his normal contractual weekly working hours
The Complainant served the Respondent Form RP9 of his intention to claim redundancy on the grounds of short time working on 23rd February 2015 and he received no counter notice from the Respondent, either within 7 days or at all, nor has the Respondent offered the Complaint not less than 13 unbroken weeks of normal full-time working. I find and decide that accordingly the Complainant became entitled to be eligible for redundancy and a redundancy payment.
I note the following:
- The Complainant’s weekly rate of pay €388.00c.
- The Complainant was employed by the Respondent from 29th March 2003 to 2nd March 2015 this is a period of 11 years and 338 days, which is 11.92 years service.
- Statutory redundancy entitlements under the Redundancy Payment Acts as amended is 2 weeks pay per year of service plus one single weeks pay.
- Based on the above the following calculations apply to the Complainant:
- 11.92 years of service x 2 weeks + 1 week = 24.84 weeks pay
- €388.00c x 24.84 = €9.637.92c
Base on the above findings I decide and declare that the complaint under Section 39 of the Redundancy Payments Act 1967 is well founded and it is upheld.
The nett sum due to the Complainant in redundancy payments under the Redundancy Payments Acts is €9,637.92 and I require the Respondent to pay him that sum within 6 weeks of the date of this decision.
Dated: 7th July 2016