ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030847
Parties:
| Complainant | Respondent |
Parties | Daniel Duggan | Suntask Solar Ireland |
| Complainant | Respondent |
Anonymised Parties | Sales Representative | Plumbing service |
Representatives | Self- represented | Respondent Director. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00041354-001 | 02/12/2020 |
Date of Adjudication Hearing: 01/06/2021
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 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. On 1/6/2021 I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
Oral evidence was presented by both the complainant and the respondent. The parties were offered the opportunity to cross examine on the evidence submitted.
Background:
The complainant submits that he was denied his statutory redundancy payments and contrary to section 7 of the Redundancy Payments Acts 1967-2014. The complainant was employed as a sales representative with the respondent from the 20 August 2018 until late August 2020 when he was made redundant, He was paid €577 gross per week. He worked 35 hours a week. He submitted his complaint to the WRC on the 2/12/2020. |
Summary of Complainant’s Case:
Direct evidence of the Complainant. The complainant took an affirmation. The complainant commenced work with the respondent on 20 August 2018. The respondent had been selling plumbing products but with Covid 19 and the consequent downturn in business, the respondent turned to the sale of Personal Protective Equipment. There was insufficient work for the staff. The complainant was laid off on 24 March 2020. He was in receipt of Pandemic Unemployment Payments from 24 March – 19 July 2020. He returned to work in late July 2020. He had a conversation with the employer in early August 2020. The employer told him that business was slow and that there were no sales. The complainant understood this and agreed to go back on PUP payments and he understood that he would get commission at a rate of 2-8% on any sales which he could make. Nobody advised him that he would not be paid by the company or that he should apply for Pandemic Unemployment Payments. He contends that he continued working from home by attempting to sell company products up until the 2 September. His last working day in the office was 16 August 2020. He received his last pay cheque on the 25/8/2020. He was not given any written notice of the redundancy and submits that this should be reckonable for purposes of reaching the 104 weeks service necessary to claim redundancy payments. He applied for redundancy payments in July 2020, but the respondent refused to pay him. The complainant seeks payment of a redundancy lump sum. |
Summary of Respondent’s Case:
Direct evidence of the respondent director. The witness took an affirmation. Prior to March 2020, the respondent had 6 employees two of whom were sales representatives. The respondent sold heating and plumbing products. The respondent director returned from China in March 2020, understood the enormity of the developing pandemic, and laid off his employees on 18/3/2020. He was allowed to stay open from March to August 2020 because of the essential nature of the products being sold. The respondent had one person working in the office, preparing stock and taking orders online. He was not one of the two sales representatives. The complainant returned to work on 19 July 2020. He advised the complainant of the diminished sales and that he would have to make him redundant. He told him verbally. He accepts he did not convey this in writing to the complainant. He agreed with the complainant’s request made on the 14 August to retain to retain him on a commission only basis. The complainant’s last day in work was 17 August 2020. The respondent submitted emails setting out that the salary paid on 25 August was for the week ending the 17 August. The respondent director stated that the complainant does not have the requisite service for payment of a redundancy lump sum. |
Findings and Conclusions:
I am obliged to determine the complainant’s entitlement to a redundancy payment in circumstances where the respondent contests his entitlement to payment on the basis of insufficient reckonable service. Relevant Law. The category of employees to whom the Redundancy Payments Acts 1967 – 2012 A applies is set out in section (4) of the Act —“4(1) Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment” The complainant requests that the 15.5 weeks spent on lay off and in receipt of PUP should be included as reckonable service. Reckonable service is set out in Schedule 3 of the Acts. Section 8 of Schedule 3 sets out absences which are not reckonable as follows: “8. None of the following absences from work shall be allowable as reckonable service— (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Occupational Injuries) Act, 1966, (b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a), (c) absence in excess of 13 weeks in a period of 52 weeks and caused by any reason not referred to in subparagraph (a) or (b) but being an absence authorised by the employer, (d) absence by reason of lay-off by the employer” Applying section 8 (d) of the Schedule concerning the non- reckonability of lay off periods to the complainant’s service, he worked from 1 September 2018 to 24 March 2020 when he was laid off until the 19 July. He remained in employment form that date until the 17 August 2020. This service amounts to 85 weeks. Whatever about the respondent’s erratic treatment of the complainant, I find that the complainant does not meet the threshold of 104 weeks required to make a claim for redundancy payments. I disallow the complainant’s appeal. |
Decision:
[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 the complainant does not meet the threshold of 104 weeks reckonable service which is required to make a claim for redundancy payments. I find he is ineligible for the payment of a redundancy lump sum. I disallow the complainant’s appeal. |
Dated: 13-09-21
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Ineligible for redundancy due to failure to reach 104 weeks reckonable service threshold |