ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015411
Parties:
| Complainant | Respondent |
Anonymised Parties | An Alarm Engineer/Electrician | An Alarm Company |
Representatives | Appeared in Person | No Appearance by or on behalf of the Respondent |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00019776-001 | 14/06/2018 |
Date of Adjudication Hearing: 10/08/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 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.
Background:
This is a claim for a lump sum redundancy payment and payment in lieu of notice. The question of statutory time limit arises. The respondent did not engage with the claim. |
Summary of Complainant’s Case:
The Complainant worked as an alarm engineer from 16 February 2011 to 31 March 2017. He earned 720.00-euro gross for a 40-hour week. He submitted details of his contract of employment, a pay slip, P45 and P60 (2016). The company had been involved in sub-contracting work at an increased level over the last year of the complainant’s employment. On 31 March 2017, while travelling home with the owner, he was informed by him that he was not taking the business into the new financial year. He did not receive notice or a period of consultation and the news was devastating. The owner made a loose reference to the complainant going to work for one of the sub-contractors but this did not materialise into any offer. All three employees lost their jobs. The Complainant referred to a colleague’s parallel claim for Redundancy having been adjudicated in favour of the complainant. He submitted that he had passed the company premises on many occasions and had observed that his van remained parked outside the disused premises and had not been moved. From April 4 onwards, the complainant sought to secure a lump sum Redundancy payment with payment in lieu of notice. He was unsuccessful. He had no idea how to progress and engaged in a protracted search which included submitting RP 50/ 77 forms, extensive contact with the Department of Social Protection and finally to the WRC on January 8, 2018. His complaint lodged at that time did not make it to registration stage and he resubmitted his complaint on 14 June 2018. The Complainant sought a lump sum redundancy payment and payment in lieu of the notice period of 4 weeks provided for in the contract of employment. The Complainant expressed an awareness that he knew he was in difficulty with statutory time limits but sought an extension on reasonable cause. |
Summary of Respondent’s Case:
The Respondent in this case does not appear to have engaged in the claim. I do not have any response tabled to the complaints. There was no appearance at hearing or reasons submitted for same. |
Findings and Conclusions:
I have considered the claim advanced in this case. The Complainant confirmed that his last day of work was March 31, 2017. The claim before me was recorded as submitted on 14 June 2018 which absolutely prevents any progression of a claim for notice in accordance with SS 41(6) and 41(8) of the Workplace Relations Act, 2015. I allowed a period of 15 minutes at the commencement of the hearing to allow for a late arrival by the respondent or clarity in terms of his intentions. I commenced the hearing with the complainant as the sole attendee. As a Preliminary issue The claim for a lump sum redundancy payment was presented outside the 52 weeks from date of dismissal statutory window. Section 24 of the Act gives me guidance on how to proceed in this case. Time-limit on claims for redundancy payment. 24 24.— Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment— (a) the payment has been agreed and paid, or ( b) the employee has made a claim for the payment by notice in writing given to the employer, or ( c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39. (2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum. (2A) 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 such 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 adjudication officer, if she 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. (3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General — ( a ) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and ( b ) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances. The Complainant sought a Redundancy lump sum payment within one week of his dismissal. He is a lay litigant and the field of redundancy is highly technical and specialised and not something that he complainant could reasonably be expected to be aware of. In the alternative, Section 17 and 18 of the Redundancy Payments Act 1967 sets out a clear road map for any employer to follow in the face of an anticipated dismissal due to redundancy. This was not done. I am satisfied that the parameters of Section 15 of the Act did not come into being as the complainant did not receive an offer of alternative employment. He secured new work himself and was successful in June 2018. I am satisfied that I must grant a reasonable cause extension on time to the complainant in this case in accordance with Section 24(2) A) of the Act. To not do so would constitute an injustice. I am satisfied that he was in pursuit of the lump sum payment from April 4, 2017 and both the lack of engagement from the respondent and the failure to address the reality of the situation in accordance with SS 17-18 of the Acts disadvantaged him considerably. I am satisfied on uncontested evidence that the complainants employment ended by way of redundancy in accordance with Section 7(2) (a). His dismissal was wholly related to a cessation in trading.Decision:Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I am satisfied on uncontested evidence that the complainants employment ended by way of redundancy in accordance with Section 7(2) (a). His dismissal was wholly related to a cessation in trading. I award a redundancy lump sum payment based on the following details. Date of Commencement: 16 February 2011 Date of Termination: 31 March 2017 Weekly wage: 720 .00-euro gross, (600 euro for calculation of redundancy lump sum) This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. The Complainant confirmed that there no breaks in his employment in the relevant period. |
Dated: 2 October 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Redundancy |