ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014630
Part-time retail assistant
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 employment on the 17 May 2011 as a part- time retail assistant. She worked 28 hours a week for which she earned €280.
Her employment ended on the 23 November 2017 when the shop ceased trading on the same date.
The respondent failed to indicate if work would be available.
She is seeking her statutory redundancy payment.
She submitted her complaint to the WRC on 11/05/2018.
Summary of Complainant’s Case:
The complainant worked as a part- time retail assistant since 17 May 2011.
The shop ceased trading on the 23 November 2018 and was closed.
A colleague advised her in December while she was on maternity leave that the shop remained closed. The complainant remained on maternity leave until the 23 June 2018.
She wrote to the respondent on the 7 December claiming redundancy payment. She advised the respondent in that letter that she expected to be paid the redundancy by 21 December. The complainant did not hear back from the respondent within the 7 days required of making the claim.
She states that she asked a colleague to post the RP50 form on her behalf in March or April. The colleague confirmed to the complainant that she did post it.
The respondent director called to the complainant some time in June before her maternity leave ended on the 23rd, to fill out a carer’s leave form for her. Her infant son had a heart condition. She applied for carer’s leave on 23 June intending to see how her son progressed before deciding on a return to work. She advised the respondent director that she had been offered a job by the new owner, in a telephone call on the 12 June and by email on the 15 June. The complainant advised the new owner that she was not available to return to work due to her son’s poor health. She advised that she would review the health of her infant the following year and decide on a return to work at that stage.
The new owner had remarked upon her unavailability to come back to work.
The respondent telephoned her on the 14 September 2018 enquiring if she intended attending the hearing. He advised the complainant that she would be offered a job with the new owner.
The respondent didn’t respond within the time limits for countering her claim for a redundancy payment.
The complainant needed her P45.
She asks that her complaint be upheld.
Summary of Respondent’s Case:
The respondent’s representative states that the respondent director had become ill. The process of acquiring a new owner was far lengthier than had been anticipated. Hence the uncertainty about the length of time within which the business would reopen. Thy accepted that it was a lay- off while another owner was being sought to maintain the business.
The respondent had maintained some contact with the complainant and advised of the efforts to secure a new owner. The respondent emailed notice of the lay off to the complainant in December 2017 or January 2018.
The respondent never received any application for redundancy or any form from the complainant or from the colleague to whom the complainant states that had given the form. Neither had that colleague submitted a claim for redundancy as stated by the complainant and had, in fact, transferred into the new ownership. Two of the 5 employees transferred in. The respondent wanted to retain the complainant as she was a good employee, familiar with the business.
The complainant did not submit any notice to the respondent.
The respondent states that the complainant advised the respondent in January 2018 that her infant son was unwell and that she did not see herself as being able to go back to work at present. She stated that she was not due back until the 1 July 2018.
The complainant asked the respondent to sign the form for a medical card in February 2018. The respondent and his son, a director, called to the complaint’s house to sign the form and produce a letter on company headed paper. The complainant never mentioned any application for redundancy.
The respondent witness – owner’s son- said that the complainant said nothing to them about the form which she now states that she sent to then and for which she received no response when they called to complete her carer’s leave form for in June 2018.
The complainant advised the respondent witness in September that as she had been offered a job with the new owner she would not attend the WRC 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. 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 accept that the respondent ceased trading on the 23 November 2017 and that therefore a lay- off situation arose. 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. I accept that the respondent was in the process of acquiring a new owner for the business.
A person seeking statutory redundancy in a lay-off situation is obliged to follow a process. Section 12 (1) states that a claim for redundancy resulting from a lay -off does not arise until 4 weeks have elapsed since the commencement of the lay-off.
The complainant submitted a letter dated 7 December 2017, claiming redundancy 14 days after she was laid off which does not comply with section 12 (1).
The complainant states in her complaint form to the WRC that she submitted a further application for redundancy via an RP 50 form to which she received no reply.
The complainant is obliged to give the respondent notice of intention to seek redundancy. The complainant’s evidence was that she gave the RP50 form to a colleague to post and that this was done either in March or April. Given the conflict of evidence as to the delivery of the claim for redundancy and on foot of a request for a copy of the application, a copy was submitted a few days after the hearing of an RP 77 form which is undated and unsigned.
The complainant is unable to state on what date the notice was served. The complainant states that she asked a colleague to post a letter. The colleague did not attend to confirm that she posted the letter.
I find that the complainant did not serve a duly completed Form RP9 on her employer indicating her intention to claim a redundancy payment unless work could be guaranteed within the timeframes laid out in the Act.
In order for her complaint to succeed she must fulfil the requirements laid out in section 12 and 13 of the Act. The circumstances of this case differ from those in D and T Forkan Construction Ltd v Michael Diamond RPD 181 where it was held that the complainant had fulfilled the requirements laid out in sections 12 and 13 of the Act, (the respondent had not) and was therefore eligible for redundancy payments.
The evidence fails to demonstrate that she complied with the requirements of the Act.
I do not find the complaint to be well founded.
[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 do not find this complaint to be well founded.
Dated: 29th May 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Notice of claim for redundancy. Section 12 and 13 of the Act.