ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014634
Hoban Boino Solicitors
Complaint/Dispute 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: 01/10/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 and 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.
The complainant commenced work with the respondent on 16/4/20111 as a sales assistant. She worked 33-35 hours a week. Her gross, weekly salary was €294.
The shop ceased trading late 2018.
The respondent failed to indicate if work would be available. She made repeated requests for redundancy. Her requests were ignored. Her employment ended on the 21/5/2018.
She submitted her complaint to the WRC on 25/5/2018.
Summary of Complainant’s Case:
The complainant worked as a shop assistant with the respondent,
The complainant was on maternity leave from 3/10/2017 until 2/4/2108.
She noticed that the shop was shuttered up in early 2018. The respondent emailed the complainant on 12 January advising that the shop would be leased, that he expected the company would be trading again within the next few weeks as the lease would be agreed. He asked if she wished to return to work under the new owner. She contacted the respondent in January 2018 indicating that she planned to return to work following her maternity in April.
The complainant emailed the respondent on 27th March stating that her return date would be 3 April. She also asked for contact details for the new owner. The complainant texted the respondent on 4 April and again on 12 April asking him to contact her and providing him with her email. The complainant received no further contact from the respondent.
She sent an RP9 form to the respondent on 14/5/2018 claiming redundancy unless work would be provided within the timeframe specified in section 12 of the Redundancy Payments Act, 1967 as amended. The complainant texted the respondent the next day asking him to complete the form. The complainant received no response to this text or to her RP9 form.
Section 13 (2) requires that a respondent intent on contesting the redundancy must do so within 7 days of service of a claim by the complainant. The respondent did not do so.
The complainant asserts that the respondent is in clear breach of the provisions of the Act of 1967 demanded by section 13(2) of the Act.
The complainant relies on two decisions of the Labour Court (D and T Forkan Construction Ltd, RPD 181 and G4S Secure Solutions (Ireland) Ltd and Krzysztof Stanek and Michael Diamond, RPD 186) which asserted that the provisions of the Act must be strictly implemented.
The registered address to which the RP 9 form was sent is the location of the shop. The respondent lives above the shop. It is the company’s job to be open to receive communication not anybody else’s.
The shop ultimately opened in August 2018.
The complainant asks that her complaint be upheld
Summary of Respondent’s Case:
The respondent’s son advises that the respondent had been unwell.
The shop closed in November 2017.
Negotiations concerning the new lease were protracted and extended way beyond what was originally intended. The respondent’s goal had been for the shop to resume trading in either April or early May. The actual transfer occurred at the end of June 2018.
The respondent telephoned the complainant in January, told her that the shop would be leased out and offered her a job with the new owner. He also emailed her this offer on the 12 January.
The respondent never received any RP 9 form from the complainant. Had they done so they would have responded. The shutters were down on the shop. They have no letter box through which mail can be delivered. Neither did they receive any letter of resignation from the complainant. Some post had been left in the pub next door including a letter from the WRC but had not been passed on to the respondent.
The company has since been taken over by a new owner who has been trading since the end of June. He telephoned and offered the complainant her job in the shop. The respondent telephoned the complainant on 12/6 18 and offered her with same terms and conditions. The complainant stated that she had applied for redundancy. On 14/6 the new owner emailed the complainant offering her job to her.
The respondent states that he provided notice of a lay off to the complainant on the 27/3/18 and got no response to this email. The complainant made no request for am update on the situation.
The respondent asserts that it was not a redundancy but that it was a transfer of undertakings and that the complainant knew that her job was assured under the new owner.
The respondent asks that the adjudicator finds in favour of the respondent’s arguments.
Findings and Conclusions:
I am required to establish if the complainant is entitled to a statutory redundancy payment by reason of lay-off and in accordance with the Act of 1967, as amended,at section 12.
Pursuant to section 12(1) of the Act, the complainant served a duly completed Form RP9 on her employer on the 14/5/18 indicating her intention to claim a redundancy payment. Section 13(2) permits an employer to contest a redundancy within seven days of the notice to claim redundancy having been served. In this case, that counter-notice - to be valid- should have been served by the respondent on the complainant no later than 21 May 2018.
There was no indication of when her work would resume.
The statutory provisions governing the circumstances of this complaint are found in sections 12 to 13 of the Act. They provide:
“12. Right to redundancy payment by reason of lay-off or short-time
(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.
13 Right of employer to give counter notice.
(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, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.”
I find that the complainant was laid off for more than 4 weeks. I find therefore that having met the requirement in section 12(1)(a) of the Act, she was entitled to claim for redundancy.
The respondent argues that they did not receive notice and had they done so they would have replied. But the notice was served to the registered address. The respondent lives over the shop. The Labour Court in D and T Forkan Construction Ltd v Michael Diamond RPD 181 stated ‘The Complainant has fulfilled the requirements specified in the aforementioned sections of the Act; the Respondent did not do so. In all the circumstances, therefore, and having regard to the strict wording of sections 11 to 13 of the Act, the Court is obliged to affirm the Adjudication Officer’s decision in this case. It has no discretion to do otherwise”.
The adjudication officer’s decision that that the complainant was entitled to a statutory redundancy payment was upheld.
In G4S Secure Solutions (Ireland) Ltd and Krzysztof Stanek, RPD 186, the Labour Court took a similar decision. It established that a lay- off situation existed. The complainant complied with the requirements of the Act. The respondent did not. It found in favour of the complainant.
I find that a lay -off situation existed. The respondent did not comply with the statutory provisions. The complainant did.
I find that the complainant commenced employment on 16/4/2011.
I find her employment ended on 21 /5/2018.
I find her gross salary was €294 per week.
She was in insurable employment.
I find that she is entitled a statutory redundancy payment.
[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 find this complaint to be well founded. I direct the respondent to pay the complaint her statutory redundancy entitlement.
Dated: April 29th 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Lay -off; redundancy.