ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037318
Parties:
| Complainant | Respondent |
Parties | David Hegarty | J & D Kearns Ltd |
Representatives | Self-represented | Mr. Kevin Hegarty, Kevin Hegarty Solicitor |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00048694-001 | 17/02/2022 |
Date of Adjudication Hearing: 06/03/2023
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
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. All evidence was heard under oath or affirmation and the parties were given an opportunity to cross-examine.
Background:
In attendance: For the Complainant: Mr. David Hegarty, Complainant (self-represented) For the Respondent: Mr. Kevin Hegarty, Solicitor Mr. Danny Kearns – First witness for the Respondent Mr. Jerome Kearns – Second witness for the Respondent The Complainant worked as a lead plumber for the Respondent. The Complainant worked for the Respondent from 2015 until 2021 and submits that his job was made redundant by his employer and that he has received no redundancy payment. The Respondent raised a preliminary point in relation to jurisdiction. The Respondent submits that the Complainant had a break in service and therefore did not have the requisite 104 weeks’ service, required in order to be eligible for a redundancy payment. The Respondent submits that all sites closed down on March 27th, 2020, due to the situation around Covid-19 and when the Complainant was called back to work on May 18th, 2020, he was on emergency tax and surmised that the Complainant had ticked a box on an online Revenue form indicating that the employment had ‘ceased.’ The Respondent submits that the Complainant then worked away from May 18th, 2020, until September 2021, when he resigned/signed off, i.e. it disputes that a redundancy occurred at all. |
Summary of Complainant’s Case:
As per his complaint form: The Complainant submits that he was put on temporary layoff in September 2021 as were his colleagues due to the company not having enough work on and he did not hear anything back from the company since. He submits that he was not sent any formal notification and neither were his colleagues. He submits that he was simply told by his boss that there was not any work coming up and he and his colleagues would be put on temporary layoff until further notice. He submits that as it was so close to Christmas and he could not afford to be out of work, he went and found other employment instead of going on social benefit. He submits that he sent the forms to the company two to three months prior to submitting his claim to the WRC, seeking redundancy payment and has not heard anything back. At the hearing, the Complainant gave evidence on his own behalf. He said that in September 2021, he was on a job in Fermoy at the time, Mr. Danny Kearns came in and ‘told us we were being let go.’ He said that the phrase used was ‘temporary layoff.’ The Complainant said that he tried to source work for the company but the company would not do it. He said he was subsequently told that the company would be ‘holding on to three of us, including myself, for two (2) weeks.’ However, he said that ‘everybody was after finding work’ on foot of the initial announcement. He cited the fact that Christmas was coming up and he did not want to be on the dole, that he did not want uncertainty in the run up to Christmas, he wanted to have money coming in. He also said that it was requested by the company that he return the power tools he was using, which he did. He said that there had been a previous period of layoff due to Covid-19 and that, on that occasion, there were forms signed so the employees could apply for PUP (pandemic unemployment payment). He said that Mr. Danny Kearns had said there was a possibility that everyone was going to be let go – there was talk of that. He said that Mr. Danny Kearns subsequently said to him ‘whoever is going to be laid off, you’re not going to be one of those’ but he said that ‘by Monday evening, every one of us had jobs.’ He said that there was no form notification and that the phrase ‘temporary layoff’ was used. On cross-examination, he was challenged on the idea that he had been made redundant. He rejected that, and emphasised the fact that Christmas was looming and that he did not want to be on the dole with no money coming in, in the run up to Christmas. He was challenged on the ‘break in service’ and it was put to him that he did not have 104 weeks service. He explained that it was not his intention to cease his job or employment relationship with the employer, and he disputed that he had done so. He did accept that he may have ticked the wrong box on the online form – he thought it was to do with claiming tax back. It was put to him that when he came back to work after the initial period of layoff (due to Covid-19 restrictions) that he was on emergency tax and had to be restarted on payroll. It was put to him that what he had done to ‘claim tax back’ meant that he had resigned his position. It was put to him that the Revenue record shows him as signed off/resigned/new employee – a simple case of claiming tax back. He rejected this and said that he thought any benefit from ticking the (wrong) box was ‘not a whole lot’, that the only ‘break’ was due to Covid-19 (government imposed) restrictions, and that he ‘went straight back working.’ He said that there was ‘no break in employment.’ Final comments by the Complainant The Complainant emphasised that he did not leave the company of his own volition, that he had tried to get the company worked and asked: ‘Why would I leave a company when I was out looking for work for them?’ He re-iterated that there was work available for the company – a particular contract he had informed the company about - but that it refused to take it up. He emphasised that six people had left all in one go, and again challenged the employer’s version of events as to what had precipitated that. He explained that three people had worked on for a further three months and that that the company then got further work and ‘didn’t call the lads back’, he said it ‘hired new people’, that the work was ‘subbed out.’ |
Summary of Respondent’s Case:
The Respondent raised a preliminary point that the Complainant did not have the requisite 104 weeks’ continuous service, due to a break in service, which it submitted occurred during a previous period of layoff. On his return, the Complainant was on emergency tax and it took approximately four (4) weeks to rectify that. The Respondent surmised that the Complainant had ticked the box saying that he had ceased employment on Revenue’s online form. Mr Danny Kearns – first witness for the Respondent The witness outlined that there was a meeting in mid-September, 2021, and that they informed the workers that ‘work was going slack’ and that the company ‘might be having a temporary layoff.’ He said that ‘put the frighteners on people.’ He said that there was a further conversation with the Complainant, on the Tuesday, and told him ‘if there are going to be layoffs, you’re not going to be one of them.’ He said, the Complainant responded: ‘Too late: I’ve got a job.’ He said that six workers left and three remained. The witness maintained the position that the employees had chosen to resign. The Complainant put to him on cross-examination: ‘Why did six people hand in their notice in one go?’ The witness said that ‘work was drying up, nothing was pricing, then as it happened work didn’t dry up.’ Mr. Jerome Kearns – the second witness for the Respondent Mr. Kearns explained that he was not at the meeting himself when the workers were informed of potential layoffs, and that the build up to that meeting was that he and Mr. Danny Kearns were talking, ‘work was drying up’, and they thought they ‘may have to put some of the lads on temporary layoff.’ He explained that the Respondent would have to issue a letter for the workers to bring to the social welfare office. He said that layoff would typically have been six (6) to eight (8) weeks. He said that it could ‘not be any length of time, because after three (3) months, you have to bring them back or give them their redundancy.’ He was asked whether there was any ‘room for confusion’ as to whether people had been laid off or not. He said: ‘No.’ He said that there had been a previous temporary layoff in 2015, and the Complainant would have received that letter before. He said that when the Covid-19 layoff happened, the company issued a letter for PUP (pandemic unemployment payment). That layoff was between March and May 2020. Mr Jerome Kearns said that he does the wages and administration for the company. He said that the Complainant (and one other worker) were on emergency tax when they returned to work, that ‘it took about four weeks to get that sorted.’ He said: ‘The rest of the crowd didn’t do it.’ He said, of the two workers, including the Complainant: ‘Whatever the two boys clicked on, they ceased their employment with J&D Kearns.’ He said that it was done through the Complainant’s Revenue file, ‘myAccount’, that everybody has their own; the company does not have access to this/sight of this, just the notification that the two employees were not employees. He said that: ‘I only knew it must have been something they clicked on/did.’ The Adjudication Officer at the hearing, enquired of the witness as to whether he was surprised to discover that the two Complainants were on emergency tax, when he came to do the payroll in May 2020. He said: ‘Yes.’ She asked why it came as a surprise to him. He said that (of those who had been laid off, on their return) four (4) employees were not on emergency tax and two (2), including the Complainant, were. He said: ‘They must have done something to put themselves on emergency tax.’ The Adjudication Officer, at the hearing enquired of the witness: ‘When the employees were put on temporary layoff on foot of the government restrictions re: Covid, was it the company’s intention to cease the employment relationship?’ The witness said: ‘No. Absolutely not.’ |
Findings and Conclusions:
I find for the Complainant. I find that neither the Respondent nor the Complainant intended for there to be a break in the employment relationship. I further find that it was government policy at the time, in the context of the Covid-19 pandemic, for employment relationships to be maintained insofar as possible. I accept the evidence of the Respondent’s second witness, Mr. Jerome Kearns, that subsequent to the period of layoff, he was surprised by the discovery that the Complainant was on emergency tax and had to be re-instated on payroll; and that it was not the employer’s intention to cease the employment relationship and not its understanding that the employment relationship had ceased, but rather that a period of temporary layoff had occurred. I further accept the Complainant’s evidence that it was not his intention to end the employment relationship, but that he may have ‘ticked the wrong box’ on Revenue’s form/website and I find as a matter of fact that that is not determinative of whether or not there is an ongoing employment relationship. In the absence of any written or oral communication between the Respondent and the Complainant to convey either party’s intention to terminate the employment contract in 2020, I am satisfied that it is not reasonable for the Respondent to infer from the circumstances, that the Complainant had terminated his employment contract at that time. I further note – in relation to a putative termination in the other direction - as set out in Ryan Redmond on Dismissal Law, 3rd Ed, 2017, at para 22.19 relying on Farrell -v- Farcourt Foods Ltd UD/610/1989: “An employee on layoff has not had his contract of employment terminated and in such circumstances the issuing of a P45 does not necessarily constitute a termination.” I find as a matter of fact that a redundancy did occur at the end of the employment relationship, and that the Complainant did not resign. I prefer the Complainant’s evidence over the Respondent’s as to the sequence of events precipitating six employees leaving in one go. I accept that the Respondent made the Complainant’s role redundant, albeit not in a procedurally compliant manner. Based on the above, I find that the Complainant had the requisite continuous service (104 weeks or more) in order to come within the net of the Redundancy Payments Act 1967. This award is made subject to the Complainant having been in insurable employment under the Social Welfare Consolidation Act 2005 during the relevant period. |
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 for the Complainant. For completeness, I find that this was a redundancy which occurred unrelated to Covid-19, and that the redundancy occurred at the instigation of the employer, not the employee. This award is made subject to the Complainant having been in insurable employment under the Social Welfare Consolidation Act 2005 during the relevant period. I find that the Complainant is entitled to a redundancy payment from the Respondent employer in the following terms (as per his complaint form): Date of Commencement: 12/02/2015 Date of Redundancy: 24/09/2021 Gross Weekly wage: This figure is capped at the maximum figure of €600 as his weekly wage exceeded that sum. As per the terms of the Redundancy Payments Act 1967, no period of layoff is reckonable for the purpose of calculating service. The Complainant had two periods of layoff – one in 2015 and one in 2020 (Covid-19 related). |
Dated: 16/08/2023
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Key Words:
Redundancy Payment; Layoff; Requisite continuous service; Break in service; |