FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : KILCAWLEY BUILDING AND CIVIL ENGINEERING (SLIGO) LTD, T/A KILCAWLEY CONSTRUCTION (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - ANDREW MULDOWNEY DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No: ADJ-00005455.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 18 April 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Kilcawley Building and Civil Engineering Company against Adjudication Officer Decision ADJ-00005455 in respect of a complaint by Andrew Muldowney under the Redundancy Payment Act 1967 (the Act). The Adjudication Officer upheld the complaint and found that the Complainant was entitled to Statutory Redundancy.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Mr Muldowney is referred to as the Complainant and Kilcawley Building and Civil Engineering are referred to as the Respondent.
Background
The Complainant was employed as a Construction General Operative with the Respondent from November 2009 till the 17thOctober 2016 when he left the employment. The Complainant was placed on lay off /short term work with effect from the 11thMarch 2016. He submitted an RP9 form to the Respondent on the 31stAugust 2016. He returned to work for the Respondent on the 6thSeptember 2016 but did not get a response in writing to the RP9 form till September 2016.
Complainant’s case
It is the Complainant’s case that he is entitled to be made redundant. He served an RP9 form on the employer on the 31stAugust 2016 and he did not receive a written response within 7 days. The Complainant set out for the Court the blocks of work he had undertaken for the Respondent during the lay-off periods highlighting that he got very little work in the month of August 2016. He acknowledged that he went back to work for the Respondent on the 6thSeptember 2016 and that after two weeks he was transferred to a site in Athlone. At that point he believes his wages were cut he was not aware that he had been in receipt of a” country money” allowance and that it was not payable on the Athlone site. He did have a meeting with the Respondents Construction Director who explained that the “country money” was not payable and offered to pay him an allowance of €100 per week but he wasn’t sure if that was a real offer. He left the employment on the 17thOctober as it was not worth his while travelling to Athlone to work. It is his understanding that as the employer did not respond in writing to the RP9 form within 7 days he is entitled to statutory redundancy.
Respondent’s case
The Complainant was placed on lay-off/short term work with effect from 11th March 2016. The Respondent received an RP9 form from the Complainant on the 1stSeptember 2016 and immediately contacted him by phone and offered him work commencing on the 6thSeptember 2016 which he accepted. The work on the particular site he was on was drying up so in accordance with his contract he was transferred to a site in Athlone in and around the 20thSeptember. On the 21stof September a letter was sent to the Complainant advising that the temporary lay-off had ceased and that the Company had full time work available for him. It is the Respondents position that in those circumstances the issue of Redundancy does not arise. The Respondent engaged with the Complainant in relation to the impact of losing the “country money” allowance. However, there is an agreement between the CIF and the Trade Unions in relation to how and when the allowance should be paid. It was not within the gift of the Respondent to pay the allowance. In acknowledgement of the fact that the Complainant had a long distance to travel to the site the Respondent did offer to make a weekly payment of €100 to the Complainant. The Complainant advised the Respondent that he would no longer be attending for work with effect from the 17thOctober 2016.
The applicable law
Section 12 of the Act states;
Right to redundancy payment by reason of lay-off or short-time.
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 to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.
(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.
Section 13 of the Act states;
Right of employer to give counter-notice.
13.— (1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.
(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.
(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, itshall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.
(4) For the purposes ofsection 12and for the purposes of subsection (3)—
(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;
(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.
Discussion and Decision.
It is not disputed that the Complainant in accordance with s12 (1) (a) of the Act was entitled to serve an RP9 form on the Respondent. However, the Respondent is entitled under s 13 (1) to give counter notice. The Complainant in this case was back working within a week of serving the RP9 form and within three weeks was informed that the lay-off had ceased and that there was full-time work available for him. In those circumstances the issue of redundancy does not arise.
The Court therefore allows the Appeal. The Adjudication Officers decision is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
24 April 2018.______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.