ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025618
An Installation Company
Collins Garcia 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: 11/02/2020
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 39 of the Redundancy Payments Acts 1967 - 2014following 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 submits that for over eleven years, he has worked on various construction projects in Ireland for the respondent company. After being placed on temporary lay off by the company on 24 June 2019, he issued the respondent with part b (Notice of Intention to claim Redundancy Lum Sum in a Lay Off/Short Time situation) of the RP9 form as provided for under the terms of the Redundancy Payments Act on 7 August 2019 via his trade union UNITE. The company did not respond so did not issue him with part c of the RP9 form (Counter notice to employees notice of intention to claim a redundancy lump sum). The complainant states that he therefore feels that he is due a redundancy payment from the respondent.
The complainant states that he worked for the company in the installation of refrigeration and air conditioning systems on construction projects over his years of service.
The Union submits that it wrote to the company a number of times in August and September 2019 seeking payment of redundancy lump sum payments. On foot of a meeting with the company Director/Owner in late September 2019, the union wrote to the company on 2 October 2019 setting out the specific redundancy lump sum payments.
In September 2019, the company changed its listed address on the Companies Registered Office. On 26 November 2019, the company was placed in examinership.
The complainant contends that the company never issued counter notice of redundancy lump sum payment as provided for on the RP9 form and consequently a redundancy lump sum payment is due to him. It is submitted by the complainant that he met his obligations under Section 12 of the Act. The complainant submits that the company did not meet its obligation under Section 13 of the Act and consequently are liable to pay the complainant his claimed redundancy lump sum.
Summary of Respondent’s Case:
The Director of the respondent company attended the hearing. He contended that while the work dried up in this jurisdiction, he had work available for the complainant in Europe. He stated there was work available in Holland, Denmark and Belgium and he informed the complainant of same.
Following the hearing on 11 February, the WRC received a written statement by e-mail from the solicitor who was appointed in relation to the Examinership of the respondent company. He stated that it appears that the claims made against the company were withheld from him by the owner of the company, Mr. T. The solicitor states that the complainant was however aware of the company being placed into Examinership. The solicitor maintains that notwithstanding the aforementioned, it appears from the analysis he has conducted that there are no redundancy obligations arising. He states that what he is aware of is that prior to Christmas 2019, the following employees;
ND, TD, SD and JL informed the company that they would not continue to travel for work, all had been working full-time off site for some time. The solicitor states that the company did not end their employment. He further submits that he is also aware that the complainant, DF and KN had been working in Dublin but had been informed that upon the completion of this project, the work the company had for them required travel. The solicitor reiterated that the respondent company did not terminate the complainant’s employment. He refers to the complainant’s contract of employment which states at paragraph 2;
You will be located at the Company’s premises at Unit 7A, X, X at the discretion of the company and subject to business requirements, you may be required to travel to other locations. “
The solicitor submits that it is clear from the fact the complainant had been conducting extensive travel for the company over prolonged periods that this clause was understood by the complainant and accepted by him.
Findings and Conclusions:
Section 7(1) of the Redundancy Payments Acts 1967-2015 provides: “An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . .”
Section 7(2) of the Acts as amended further provides that:
For the purposes of subsection (1), an employee who is dismissed shall be taken to be 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 for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that 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, or
(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or
(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or
(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.
Lay-off and short-time.
11 — (1) Where 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—
(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
(b) the employer gives notice to that effect to the employee prior to the cessation,
that cessation of employment shall be regarded for the purposes of this Act as lay-off.
(2) Where —
(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,
(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.
(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work, the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.
(3) 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 reduced hours of work for any week are less than one-half of his normal weekly hours, he shall for the purposes of this Part be taken to be kept on short-time for that week.
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. (4) For the purposes of section 12 and for the purposes of subsection (3)—
(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other; (b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.
Having considered the within complaint, I find that the complainant has fulfilled the requirements specified in the aforementioned sections of the Act; the respondent did not do so. In all of the circumstances therefore and having regard to the strict wording of sections 11 to 13 of the Act, I find that the complainant has an entitlement to a redundancy lump sum under the Redundancy Payments Act.
The employment started:29 September 2008
The employment ended:24 June 2019
Gross pay was €800 per week subject to a ceiling of €600
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 that this complaint is well-founded. The complainant is entitled to a redundancy lump sum under the Redundancy Payments Act.
Dated: 1st July 2020
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Redundancy Payments Act