ADJUDICATION OFFICER DECISION
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 20142015, 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 her employment with the Respondent on 18 April 2015. Her employment ended on 29 October 2018.
Summary of Complainant’s Case:
The Complainant stated that she did not receive a contract of employment from the Respondent. The Complainant stated that she only received a total of 5 payslips throughput the duration of her employment. The Complainant stated that the information on the payslips she did receive were incorrect.
On 14 October 2018 she was given two weeks’ notice that her employment would be terminated. Her employment was subsequently terminated on 29 October 2018. The Complainant was told by the Respondent that the hours were being reduced and they were going to re-open in March. The Complainant stated that this was the first time the company closed for this period of time however she never got anything in writing confirming the same. The Complainant was the manager of the restaurant so she was advised before other members of staff. Other staff members were informed of the closure a week later as they only required one weeks’ notice.
The Complainant was informed that her job would be waiting for her. The Complainant stated that she got a new job and asked for her p45. She started her new job on 31 October 2018. The Complainant stated that all other employees also got their p45. The Complainant stated that she asked for redundancy but was told that as she had requested her p45, she was not entitled to it.
The Complainant stated that the Respondent offered to pay for her college course instead of paying her redundancy. The Complainant stated that she could not afford to be off work to do the course and the course never went ahead anyway due to numbers.
The Complainant stated that she wrote to the Respondent on 3 November 2018 requesting redundancy and stating that her holiday pay was outstanding. The Complainant stated that she advised the Respondent that she would have to go to the WRC if she did not receive this redundancy payment. The Complainant stated that she received her holiday pay as the Respondent’s accountant called her to arrange same.
The Complainant stated that she had intended to leave the previous summer however the Respondent matched any offer she had gotten from another company. The Complainant stated that at this time the Respondent also guaranteed her full time hours and then the business closed in October.
Summary of Respondent’s Case:
The Respondent’s accountant stated that he understood the Complainant was being offered the cost of covering her course however they this was when they thought she was going to return. The Respondent’s accountant confirmed that they had received a letter from the Complainant and requested that the Adjudicator decide as to whether the Complainant is entitled to a redundancy payment.
Findings and Conclusions:
The Complainants start date was the 18 April 2015 with the termination date being the 29 October 2018.
Section 11 (1) and (2) of the Redundancy Payments Act, 1967 refers to lay-off and short time:
11.—(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
(2) Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for any week is less than one-half of his normal weekly remuneration, he shall for the purposes of this Part be taken to be kept on short-time for that week.
In this case it is reasonable in the circumstances for the Respondent to believe that the cessation of the employment would not be permanent. Notice was provided to the Complainant and the period of closure is deemed as a lay off period.
Section 12(1), (2)(a) and (2)(b) of the Redundancy Payments Act, 1967 refers to the right to redundancy payment by reason of lay-off or short-time:
12.—(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 a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.
(2) An employee who has given a notice of intention to claim shall not be entitled to redundancy payment in pursuance of that notice unless within a period of one month from the date of that notice, or, where the matter has been referred to the Appeals Tribunal, within one month from the date of notification to the employee of the Tribunal's decision, he duly terminates his contract of employment by giving the notice required by that contract or, if no notice is so required, by giving to his employer not less than one week's notice in writing of the employee's intention to terminate that contract, and, before the service of the notice of intention to claim, either—
(a) he has been laid off or kept on short-time for four or more consecutive weeks of which the last before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date, or
(b) he has been laid off or kept on short-time for a series of six or more weeks (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date.
The Complainant was verbally advised that she would be laid off from work until March 2019. The Complainant’s last working day with the Respondent was 29 October 2018 as per her letter to the Respondent on 28 November 2018. The Complainant successfully found another job and so requested her P45 from the Respondent. This was confirmed as per her letter to the Respondent on 28 November 2018. The Complainant stated that she commenced employment with her new employer on 31 October 2018.
The Complainant requested to terminate her employment by requesting her P45 to take up employment with a new employer. The Complainant commenced new employment on the 31 October 2018 some 17 days after the notice was provided to her in respect to the upcoming lay off period. In this respect as per the legislation, in order to qualify for a redundancy payment while on lay off, the Complainant would have to have been subject to a lay off period or kept on short-time for four or more consecutive weeks. The Complainant in this case was not on lay-off for four or more consecutive weeks.
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. The Complainant does not qualify for redundancy payment as she requested to terminate her employment having been advised that she would be placed on a period on lay-off until March 2019. The Complainant was not subject to lay-off for a period of four or more consecutive weeks before she queried redundancy.
Dated: 28th May 2019
Workplace Relations Commission Adjudication Officer: