ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012161
A Construction Company
Appeared in Person
Emer O Callaghan, Solicitor
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 03/05/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
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.
This case involves a claim for a Redundancy Lump sum payment when employment moved between the Respondent and an Agency. The claim is disputed.
Summary of Complainant’s Case:
The Complainant worked as a Steel Fixer for the Respondent Construction Company from May 4, 2015 to 19 May 2017.He worked a 45-hour week in return for €700 nett pay per week. The Complainant outlined that his employment was transferred to an Agency on 19 May 2017.He predicted that this would be a short-term measure for a few weeks, but it went on until his employment was suddenly terminated on 11 August 2017.He secured new work within a couple of weeks.
He submitted an extract from a P45 which reflected a 12-week Agency employment record from 15 May 2017 to 11 August 2017.The Complainant submitted that his P45 from the Respondent had not been given to him and had been sent instead directly to the Agency. He stated that he obtained the same pay in both employments but the Respondent paid in the event of sickness, while the Agency did not.
The Complainant applied for a lump sum redundancy payment from the Respondent but did not secure this payment. He sought this payment at the hearing and was accompanied by a former colleague as a witness.
Summary of Respondent’s Case:
The Solicitor on behalf of the Respondent outlined that the Respondent was not the correctly identified employer given that the complainant had voluntarily transferred employment to a named Agency on 19 May 2017. He was then paid by the Agency. The Respondent had, therefore no liability for payment of a Redundancy lump sum payment. The Complainant was also out of time for any complaint of notice or annual leave.
The Complainant had previously worked for the named Agency before joining the Respondent construction company in May 2015.
The Respondent submitted that the complainant was laid off by the Agency on 11 August 2017 and secured new work two weeks later. He was offered employment on October 19,2017 but refused it.
The Respondent submitted that no cessation of employment had taken place to justify a claim for Redundancy. He had gone from the respondent to the Agency where a period of Lay off followed without an application for Job seekers benefit. He resigned from his employment during the period of lay off which contravene the protections contained in Section 12 of the Redundancy Payments Acts. The Complainant made a late application for Redundancy in November 2017.
The Respondent contended that the case should be dismissed on a Preliminary Issue of identification of the incorrect employer. The Respondent made a follow-on submission post hearing which addressed the rebuttal of the Respondents liability to pay Redundancy lump sum payment, relying on EAT case law of Donnelly V DD O Brien 524/2005.
Findings and Conclusions:
I have listened carefully to the parties in this case. I have considered the written submission submitted by the Respondent which while shared with the complainant did not illicit a response from him.
The claim centres on an application for a Redundancy Lump sum payment following a submitted termination of employment dated 19 May 2017. This claim is disputed by the Respondent who has relied on an argument in support of a continuity of employment with the named Agency, who were not present or represented at hearing. The Respondent argued that the Complainant was laid off by a different employer in August 2017 and his subsequent resignation negated any potential claim for Redundancy.
I have reflected on both arguments.
Preliminary Issue: Correct Employer
Both parties accept that the complainant worked in excess of 104 weeks for the Respondent prior to a transfer to the named Agency .I could not establish just what exactly prompted the transfer of the complainant and another colleague to this Agency at this particular time .I did not receive any detail from the Respondent on the transfer and whether it included other staff or construction sector equipment , vehicles or premises .I could not establish whether an actual transfer under TUPE Regulations occurred? . I note that the complainant had worked for this Agency in the past and that mobility in employment featured in his employment record. However, I was struck by the lack of any formality surrounding this transfer, which while on the face of it possessed the hallmarks of similarity differed in sick leave cover.
Both Employments appear to have avoided issuing a written statement of terms of employment, therefore it is difficult to analyse the facts of the case.
I could not identify any formal or informal document issued by the Respondent which accompanied the transfer of employment to the Agency in May 2017. Instead, the complainant told me that he was asked to go to the Agency for a few weeks whilst the Owner was starting a new company for Insurance purposes. I found this to be a careless and avoidant practice, which ought to have prompted a deeper consideration by the complainant. I did not receive any documentation which supported this purported transfer.
I looked particularly at the Respondent presentation of the complainants P45, not to him directly but to the Agency. The Complainant submitted an August 2017 Declaration from Revenue that the Complainant had worked for the Respondent 4 May 2015-19 May 2017.
Section 2 of the Redundancy Payments Act, 1967 defines an Employer as:
employer ’ means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph ( b ) of the definition of ‘ contract of employment ’ is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual ’ s employer;
There was no attendance from the Agency at the hearing. Based on the balance of probabilities, and the evidence before me, I must identify the Respondent as the Employer in this case. I could not establish details of a bona fide transfer or any documentation in support of same. I appreciate that the complainant commenced work for the Agency without appealing the transfer decision, however, I am struck by the fact that his agreement was assumed rather than secured and this puts the scenario of voluntary transfer at the 106 th week of continuous employment into an area of considerable doubt for me.
I did ask the complainant if he considered withholding his consent on transfer? but he replied that he felt that he had no choice.
The P45 transfer while not entirely determinative of dismissal did indicate a certain degree of unilateralism from the Respondent and must be considered less than best practice.
I find the Respondent to be the correct employer for the purposes of the case. I will proceed accordingly.
Claim for a Redundancy Lump Sum Payment
For the purposes of the Redundancy Payments Acts an employee is dismissed because of redundancy if “for one or more reasons not related to the employee concerned, his dismissal is attributable “wholly or mainly “to one of the five situations outlined in Section 7(2) of the Act. The Respondent has strongly disputed that a dismissal occurred in the case and contended that the employment transferred seamlessly to the Agency in May 2017.
I have considered this argument. I reflected on the complainant’s evidence that he understood that a group transfer of employees to the Agency was predicated on the need for a revision in the business for Insurance purposes. He described a “holding bay “mechanism which led to an 11-week continuous employment with “no way back “.
I considered the circumstances surrounding both party’s interpretation of the facts now of finalisation of the complainant’s employment experience.
I do not have the benefit of an employment contract to scope out where the complainant was employed. I accept that he worked from many bases during his two-year employment. I accept that he changed base on the conclusion of his employment with the Respondent. However, I must identify whether a true dismissal occurred in the case.?
I have considered Section 9 of the Act.
Renewal of Contract or Re-engagement
There are certain circumstances where there is a renewal of a contract on the same terms and conditions and there is no dismissal and thus no entitlement to a redundancy payment within the meaning of the Act
in a case where the provisions of the contract as renewed or of the new contract as to the capacity and place in which he is employed, and as to the other terms and conditions of his employment, do not differ from the corresponding conditions of the previous contract, the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract, or
in any other case, the renewal or re-engagement is in pursuance of an offer in writing made by his employer before the ending of his employment under the previous contract, and takes effect either immediately on the ending of that employment or after an interval of not more than four weeks thereafter.
Also, if there is a re-engagement by a different employer and the employment commences immediately upon the agreement of the parties confirming the terms and conditions of employment (with a written statement that service is continuous), then there is no entitlement to redundancy, as there is no dismissal.
In applying these scenarios to the facts of this case. I have found that while no material contracts were in being, the complainant confirmed that the Agency did not cover sick pay. This distinguished this work as different to work with the Respondent.
I have also found that the move from working with the Respondent to the Agency, while agreed with the parties was not accompanied by an offer in writing or a statement outlining continuity of employment. An Employer has a duty of care towards an employee to do all that is possible and practical to safeguard continuity of employment and to work within the legislation prevailing.
I have quoted from Section 9(3) on Dismisal in this regard.
(3) (a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if—
(I) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment,
(ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer,
(iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which—
(A) sets out the terms and conditions of the employee’s contract of employment with the new employer,
(B) specifies that the employee’s period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer,
(C) contains of the mentioned in clause (B), and
(D) the employee notifies in writing the new employer that the employee accepts the statement required by this subparagraph.
(b) Where in accordance with this subsection an employee is re-engaged by the new employer, the service of that employee with the previous employer shall for the purposes of this Act be deemed to be service with the new employer.
This section of the Act places a clear road map for completion on the Respondent to copper fasten a continuity of employment. In the main it requires an exchange in documents between Employer 1 and Employer 2 encompassing an employee consent. The sole document I received was the complainants P45. This does not fulfil the requirements of Section 9(3).
Notwithstanding that the complainant did commence work for the Agency on finishing at the Respondent business, I find that the Respondent cannot reasonably rely on the contention that the Complainant was not dismissed. There has been no exhibition of the required tenets of Section 9(3) to negate a dismissal. Therefore, I find that a dismissal occurred in this case for want of full compliance with the essential components of Section 9 of the Act. I also find that this dismissal is a redundancy as defined in Section 7(2) (c) of the Act.
The Claim is well founded.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have found that the complainant was dismissed by reason of redundancy and is entitled to recover a lump sum redundancy payment calculated on the following criteria
Date of Commencement: 4 May 2015
Date of Termination: 19 May 2017
Gross weekly Pay: €804.65 (From P45)
No Breaks in Service:
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Dated: 28th September 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle