ADJUDICATION OFFICER DECISION
A General Operative
A Government Department
Government Department Official
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing: 19 March 2019, and 23 April 2019
Workplace Relations Commission Adjudication Officer:
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.
Summary of Complainant’s Case:
The Complainant gave a written and oral outline of the background to his claims. Prior to September 1999, the Complainant had undertaken work experience with the full knowledge and support of an Intellectually Disabled Centre to which he had been aligned.
The Company who hosted him on work experience offered him a full-time position of General Operative in September 1999. He accepted the position and received €90 pay per week separate to his pre -existing Social Welfare Payment. The Employer at the time was a Family Business which made cakes. The Complainant liked his work.
The Complainant submitted that he had worked continuously on that arrangement and without a contract of employment until he received a pay raise of € 110 per week in 2010, bringing his total payment to €200 per week. This prompted a knock-on mean assessment by the DSP on 29 June 2010 and his Supplementary DSP payment was reduced by €40 per week.
This remained the case until his employment ended in April 2017 via Insolvency. The Complainant did not have Pay slips. P45 was dated 25 March 2017.P60 for 2016 indicated an € 10,400-annual payment.
The Complainant submitted two written Testimonials to his continuous tenure September 1999 to March 2017. One from the Intellectual Disability Centre and one from his former employer, the Cake Company.
The Complainant applied for his lump sum Redundancy Payment on 18 April 2017, He exhibited a copy of the signed application form, managed by the Liquidator.
On 27 April 2017 the Complainant was informed that his claim for Redundancy had been submitted by the Liquidators. On 16 May 2017, he received a written confirmation of €2880.00 in redundancy lump sum payment from the respondent. He was confused as the Redundancy Calculator had estimated payment as €7244.00.
The Joint Liquidator wrote to the complainant’s representative and confirmed that while he had tried to obtain 1999-2017 recognition of tenure for the complainant, Revenue had confirmed that there were no records prior to 16 july2010. He counselled that documentation of service validation should be sourced. No further progress was made prior to the referral to WRC made on 4 December 2017.
The Complainants representative outlined the complainant’s disappointment at being left short in his redundancy payment. She detailed a very pronounced effort made to resolve the matter prior to WRC referral. She recounted that the complainant had worked amongst 10-12 employees largely on his own, as the sole cleaner.
The Complainant addressed the hearing and confirmed that he had worked from September 1, 1999 to March 25, 2017 at the company which entered Liquidation. He had a clear memory of leaving the smaller bakery, where he had worked alone to go and work to the North Side in 2000/2001. More cleaners were hired then.
The Complainants representative submitted that the complainant was the only employee who had experienced this detriment post liquidation and she submitted that the complainant was a vulnerable worker. She re-affirmed that the complainant had worked continuously from September 1, 1999 to the date of Liquidation in April 2017. She accepted that the P45 date of 25 March 2017 was the correct end date.
Finally, she submitted that the Complainant was entitled to the short fall in Redundancy Payment.
Summary of Respondent’s Case:
The Respondent made written and oral presentations. He outlined that the Scheme operates under the relevant legislation. It is administered by the Department. The Department steps in when the employer, on whom the primary responsibility for payment of statutory Redundancy lies, can prove to the satisfaction of the Department that it is unable to pay statutory redundancy to its eligible employees. The Department will then seek to recover this debt from the Employer.
To qualify for a statutory redundancy payment, an employee must:
1. Have at least two years continuous service
2. Be in employment which is insurable for all payments under the Social Welfare Acts
3. Be aged over 16
4. Be a product of a genuine redundancy
An employee may appeal a disallowance under Section 39 of the Redundancy Payments Act, 1967, as amended.
The Respondent confirmed that the application for redundancy was received on 28 April 2017. This stated that
Date of Commencement: 1 September 1999
Date of Termination: 6 April 2017
Weekly Wage €200, no breaks in service.
A Validation process followed, where the termination date was amended to 25 March 2017 on P45 and employment records. The date of commencement was changed to 16 July 2010 on data held by records. The claim was authorised and paid by EFT for €2,8880 on 26 May 2017.
The Respondent submitted that this decision was correct.
Relying on Section 45(1) (a) of the Act:
Subject to this section and to section 47, this Act applies to
(a) Employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act, 2005.
The Respondent had not sourced a record of the complainant’s employment outside the dates mentioned above. There were no PRSI payments made on his behalf. The Department had no alternative but to disallow the broader claim in time.
At the hearing, The Respondent re-affirmed this position and made a further suggestion that the complainant could try the “records section “again to seek to ascertain if any records had come to light. The Respondent required records of employment and proof of PRSI paid to alter the claim. The Respondent remains open to amending the claim on provision of those records on submission of supplementary forms from the Liquidator.
The Respondent exchanged the Contact details for the records office and advised an eight-week period before moving to decision in the case to facilitate a final search by the complainant, if needed.
Findings and Conclusions:
I have taken some time to reflect on the facts of this case. I have considered both oral and written submissions in the case. I appreciate that a delay has arisen in the throughput of the case and this has arisen due to the ambiguity in the composition of the complaint form. This has been resolved by the assistance of the WRC and the Government Department. The parties took 8 weeks post hearing to allow for any informal development. Nothing further developed, and I pressed on to decisions in both cases.
I am mindful of both parties’ positions, the complainant submitted that he was the sole employee who did not receive his rightful entitlement. The respondent submitted that the Department cannot process a claim without commensurate records.
It is important for me that the complainant was a vulnerable worker in an assisted Rehabilitative pathway to this job. I listened carefully when he addressed the hearing and found him very clear on his employment tenure. I asked him to recall what he could from his employment to help me in my decision. I was struck by his clear recall of moving bases in 2001 to the Northern part of the city. I was also struck by his knowledge of his role which diversified when more cleaners were hired for a larger premise. Of course, I would have liked to meet the authors of the testimonials, the cake company proprietors and the Intellectual Disability Centre. I have, however, given regard to their statements confirming continuity of employment consistent with the complainants recall.
I found an important document in the complainants’ papers. This was a document issued by Social Welfare dated 29 June 2010. It was described as a “Review of Disability Allowance” and resulted in a €40 reduction in this allowance directly attributable to the Complainants earnings of €200 Gross pay for work of” a rehabilitative nature “. This predated the records relied on by the Respondent which were mentioned as a 15 July 2010 start date. The Letter from Social Welfare points to a much longer period of employment before that time.
I have considered the Respondent submission that there are no commensurate records of PRSI paid for the complainant September 1999-July 2010. I note that the complainant was paid cash during this period and the cake company had not entered him for Employer PRSI records until July 2010. If I am to follow the complainant’s evidence, he was a “hidden employee “. This was not compatible with the spirit of rehabilitative employment aimed at normalisation at work.
The Complainant was concurrently in receipt of his Social Welfare Payment throughout the contested period of employment. From a careful perusal of the P45 and P60, the complainant was not in a PRSI, PAYE contributor status in his own right. This may have been linked to the rehabilitative nature of his employment. I have no means of probing further here in a Liquidation setting.
The Respondent submits that the Deciding Officer was bound by the parameters of Section 4 (1)(a) of the Act. On a literal interpretation of this section, the complainant was always in insurable employment. It may not have been his responsibility to register for PRSI, given the co-existence of a disability payment. However, it was the Employers responsibility to register employees.
Based on the evidence before me, I find that the complainant was employed from September 1, 1999 to the date of his termination of employment, 25 March 2017. His personal recollection of his work done and the testimonials support this. I am particularly swayed by his personal recollection of working on two sites. The former employer fell far short of a reasonable employer in the management of the complainant’s employment records and file.
This brings me to consider Section 7 of the Act.
General right to redundancy payment.
7.— (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—
(a) he has been employed for the requisite period, and
( b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.
I have found that the complainant was employed for the requisite period claimed. I must now find that he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts immediately before the date of his employment. He also received his Disability Allowance from the State in the commensurate period which preserves DSP benefits.
The Complainant was in insurable employment at the time of his termination. The P60s confirm this by Employer contributions in his name.
I have found the claim to be well founded. The Claim for a Redundancy Payment 1 September 1999 to 25 March 2017 is entitled to succeed.
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 is entitled to receive the full Redundancy Payment claimed in April 2017 in accordance with the following:
Date of Commencement: 1 September 1999
Date of Termination: 25 March 2017
Weekly Wage: €200.00
Breaks: No Breaks in Service
This amount is to take account of the €2,880.00 already paid in May 2017.
The decision is made on the basis that the complainant was in insurable employment under the Social Welfare Acts during the commensurate period. In addition, that the Respondent has the potential to reclaim the amount from the former employer through the Liquidation process.
Dated: 1st August 2019
Workplace Relations Commission Adjudication Officer:
Redundancy Lump Sum Payment Shortfall