EMPLOYMENT APPEALS TRIBUNAL
Barnes Limestone Quarry Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Letterkenny on 11th April 2016 and 31st August 2016 and 20th October 2016
Claimant: Mr. Kieran O'Gorman, Kieran R O'Gorman Solicitors, 62 Upper Main Street, Letterkenny, Co. Donegal
Respondent: Mr Ciaran F MacLochlainn, C S Kelly & Company, Solicitors, Market House, Buncrana, Co Donegal
On the 11th of April 2014 a claim under the Redundancy Payments Acts, 1967 to 2007 was added to the claim.
On the 3rd of May 2016 the claim under the Unfair Dismissals Acts, 1977 to 2007 was withdrawn.
On 31st of August 2016 the representative for the respondent raised a preliminary issue in respect of the time limit to lodge a claim under the Redundancy Payments Acts, 1967 to 2007. He stated the appellant’s claim was well outside the time limit as set out in the Act and therefore the Tribunal could not hear the matter.
Section 24 of the Redundancy Payments Acts, 1967 as amended by section 12 (2A) of the Redundancy Payments Acts, 1971 states:
“ Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the tribunal, if is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.”
The respondent’s representative stated the claimant must show such reasonable circumstances in order for the Tribunal to extend the time to 104 weeks and hear his claim.
Having heard lengthy submissions from both representatives the Tribunal found there was reasonable cause which prevented the claimant from lodging his claim within the 12 month time limit and therefore found they had jurisdiction to hear the substantive claim under the Redundancy Payments Acts, 1967 to 2007.
An RP9 shown to the Tribunal contained dates of lay-off 21/7/2014 to 28/7/2014 and was dated 17/7/2014.
The claimant told the Tribunal that he was a lorry driver who began work as a full time employee in 1998. His hours were reduced to a three day week in 2009. He received a letter from his employer in March 2013 stating that unfortunately they would only have one or two days a week for him. This continued and at some time in May 2014 the quarry he was working out of closed and he stated that he heard nothing from the respondent so he sought advice from Citizens Information he handed in an RP9 in July 2014.
Nothing transpired from the RP9 so after a seven day period he went back to the company office and was told that it had been lost. AM (wife of PJ the managing director) told him that he would not be getting any redundancy. He filled out another form (RP9) and gave it to her. He stated that things went downhill from there on. He got very little work and had a mortgage and children to support so things became very difficult.
By October 2014 things had not improved. He asked AM for a letter for Social Welfare but she declined initially saying that “you will use it to seek redundancy”. Eventually she agreed and drafted a letter, dated 13th October, saying that the respondent “had no work available at present”. He felt he had no option but to seek legal advice. He went to his solicitor in November 2104 and sought redundancy through his legal representative.
The Managing Director PJ (husband of AM) told the Tribunal that he had a lease on a quarry that closed in May 2014. Everybody, including the claimant was involved in a move to another location and the process took two/three weeks. A new company was set up at the time and the employer became a different entity.
He said the claimant was generally on a three day week up to May 2014 and they had a good working relationship. The claimant did approach him looking for redundancy but he told him “no” and the company couldn’t afford it. He did not approve of any letter being drafted for Social Welfare and had told his wife not to do one.
He never seen the RP9 that the claimant alleged to have dropped in, that never happened. He stated that the claimant was replaced by someone else.
Asked if he had filled out the T2 form which stated that the claimant left of his own violation
PJ stated that it was completed by his solicitor so he was unaware of its contents. Asked if employees were advised of a transfer to a new company or when contracts were signed he stated that it was done in the office while staff were being paid at (sometime in September) and the claimant had refused to sign the contract. He said that other drivers picked up the work done by the claimant for some time after his departure. He added that the contents of the letter drafted by AM stating that there was no work available for the claimant was untrue.
AM told the Tribunal that she never received an RP9 from the claimant, her first sighting of it was when it was produced to the Tribunal. She did not want to draft the letter of 13th October but was assured it was for Social Welfare purposes only.
This determination consists of a dissenting opinion and a majority judgment.
Dissenting Opinion of Mr Morrison:
From the evidence adduced I can find no evidence that the claimant met the criteria as required in the Redundancy Payments Acts 1967 to 2007. He requested the letter from his employer dated 13th Oct and got paid for one day after receiving the letter so was on lay-off or short time. He sought legal advice and initially took a case for Unfair Dismissal, it was later changed to a claim for Redundancy. The evidence given by the respondent was that he refused to sign a new contract of employment.
In these circumstances it would be unfair to find the claimant was made redundant. I therefore dissent from the conclusions of my colleagues.
There was a serious conflict of evidence as to how the claimant’s employment with the respondent came to an end. The Tribunal majority does not accept that the claimant voluntarily resigned from the employment.
The Redundancy Payments Acts 1967 to 2007 specifies as follows:
12 (1)an employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless -
(a) He has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and
(b) after the expiry of the relevant period of lay-off or short time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay off or short-time, he gives his employer notice in writing of his intention to claim redundancy payment in respect of lay off or short-time.
When the RP9 was served, in July 2014, the claimant had not matched any of the above criteria and the Tribunal must consider the RP9 invalid.
The Tribunal must consider the letter of 13th October 2014 and determine as to whether this constituted notice of redundancy. The claimant says it did, and this is supported by the fact that the company pay records reflected that he was either doing no work or one day per week and this was only to fill in where another employee was absent.
The company says that it did not instigate the letter. It was written at the request of the claimant for Social Welfare purposes. The company say that it was reluctant to issue the letter and was reassured by the claimant that he would not use it to ground a redundancy claim.
On balance the majority of the Tribunal finds that the letter of 13th October combined with the fact that the claimant was only doing one day per week or on occasion no work at all, constituted notice of redundancy.
The claimant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following information:
Date of Commencement: 28th July 1998
Date of Termination: 13th November 2014
Weekly Gross Pay: €270.00
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