ADJUDICATION OFFICER DECISION
Technical training provider
Did not attend.
Complaint/Dispute Reference No.
Date of Receipt
Dates of Adjudication Hearing:
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.
The complaint was first heard on 7/12/2018. The complaint was withdrawn on the day on the basis of an agreement which the respondent failed to implement by the agreed date.
The hearing was reconvened for the 10/6/2019.
The complainant commenced work with the respondent on the 9 March 2016 as an instructor earning €803 gross per week. His employment ended on 18 May 2018. The complainant submitted his complaint to the WRC on 16/11/2018.
Summary of Complainant’s Case:
The complainant is seeking a redundancy payment.
The complainant commenced employment with the respondent on the 9/3/2016.
The complainant was put on temporary layoff on 18 May18. A copy of the respondent’s notification of same which was devoid of an end date was submitted in evidence. The complainant served a completed RP9 Form on his employer on the 11 September 18 indicating his intention to claim a redundancy payment. The respondent failed to reply. The complainant submitted an RP77 to the respondent on 30 October 18. He received no response to same. He received no further offer of employment from his employer after having been placed on temporary lay-off on 18 May 2018. His job ceased to exist.
He believes he is entitled to a redundancy payment based on his service from 9 March 2016-18 May 2018.
Summary of Respondent’s Case:
There was no appearance by anyone representing the company. I am satisfied that they were duly notified of the details of the hearing.
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.
The statutory provisions governing the circumstances of this complaint are found in sections 12 to 13 of the Act of 1967.
Section 12 provides
“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 he gives to his employer notice (in this Part referred to as notice of intention to claim redundancy payment in respect of lay-off or short-time”.
Based on the uncontested evidence I find that the complainant was laid off on 18 May 2018. The respondent characterised the lay- off as temporary though no end date for either the lay-off or a resumption of work was ever given or materialised.
Pursuant to section 12(1) of the Act of 1967, the complainant served a duly completed Form RP9 on his employer on the 11/9/18 indicating his intention to claim a redundancy payment. The EAT in Jonathan Graydon v McGrattan and Kenny Limited, RP396/2005 noted that as the lay -off was continuing and therefore the notice was served at a time that was not four weeks after the lay-off/short-time ceases. The circumstances are the same in the instant case. The lay- off was open ended and accompanied by a stated aspiration to have the complainant return to work when it became available. The respondent made no further communication with the complainant after the 18 May 2018.
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.No such counter- notice was ever served by the respondent.
I find that the respondent failed to comply with the requirements to provide counter notice set out in section 13(2) of the Act of 1967. I find that the respondent failed to comply with the requirements set out in section 13(1) to offer the complainant a period not less than 13 weeks employment. I find that the respondent failed to offer the complainant any employment after the 18 May 2018.
I find that the complainant submitted an RP77 to the respondent on 30 October 18. He received no response to same
Section 7(2) of the Redundancy Payments Act, 1967, states:
“For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –
(a) The fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or
(b) The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish”
I find that the contract to provide training services for the respondent was terminated in circumstances where section 7(2)(a) and /or (b), as cited above arose and by reason of redundancy on 18 May 2018.
Section 7(1) of the Redundancy Payments Act 1967 (amended) provides that;
“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 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 – 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.”
The complainant had the requisite service when the business closed down. Based on the uncontested evidence presented to me, I find that he was in insurable employment and that he was made redundant with effect from 18 May 2018.
I find that the complainant is entitled to statutory redundancy as per the terms of the Redundancy Payments Acts 1967-2012
[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.
Based on the evidence before me I am satisfied that the complainant was in employment with the respondent since 9 March 2016.I find that his employment terminated on 18 May 2018 by reason of redundancy.
I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:
Date of Commencement: 9 March 2016
Date of Termination: 18 May 2018
Gross Weekly Pay: €803 subject to the maximum allowable sum of €600 per week
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Workplace Relations Commission Adjudication Officer: