ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042242
Parties:
| Complainant | Respondent |
Parties | Ann Flanagan | JJ Lalor Ltd |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives |
| Valerie Morrison of Peninsula Business Services Ireland |
Complaint(s):
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-00053100-001 | 21/09/2022 |
Date of Adjudication Hearing: 27/04/2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 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 parties were also afforded the opportunity to examine and cross-examine each other’s evidence as part of the hearing. All evidence was given under oath or by affirmation.
Background:
The complainant says she is entitled to redundancy payment. |
Summary of Complainant’s Case:
The complainant submits she was employed by the respondent from May 1966. In March 2020 she was laid off due to the Covid-19 pandemic. For over a year she heard nothing and considers that she is entitled to a redundancy payment. She contacted the respondent on 28 June 2021 saying she had been expecting them to contact her regarding her position. She was told the shop where she been working was closed, so the respondent’s franchise in the shop had closed. The complainant asked for clarification of her position and was told her job was redundant. The complainant responded by asking for the terms of the redundancy. The respondent then said they did not say her position was redundant but the franchise where she worked was no longer in operation and her position was available in the respondent’s main base. The complainant did not respond, as she was waiting for the respondent to get back to her with further details. On 23 August 2022 the complainant sent an RP9 Redundancy Form to the respondent, giving notice of her intention to claim redundancy lump sum because of a lay off. She got no reply and submitted this complaint on 21 September 2022. |
Summary of Respondent’s Case:
The respondent says the complainant started working for them in June 1967 as a dispatch clerk. She worked 39 hours per week in a franchise they operated at the Veritas shop. She was provided with a formal contract in August 2009. The complainant reached the respondent’s normal retirement age of 66 in 2018. She requested if she could continue to work on a part-time basis of 20 hours per week and this was acceded to by the respondent. On 18 March 2020 the complainant was placed on temporary lay-off because of the Covid-19 pandemic. The respondent submits the complainant refused to take up an offer of suitable alternative employment which was made on 4 August 2021 and is therefore debarred from claiming redundancy. The complainant submitted a formal claim of redundancy, using RP9 dated 23 August 2022. She referred this complaint to the WRC on 21 September 2022. The respondent denies the complainant was made redundant; she was placed on temporary lay-off and refused to take up the offer of suitable alternative employment. The respondent further submits this claim is out of time as the complainant was put on layoff on 18 March 2020. Following correspondence in 2021 the complainant asked the respondent “if you could inform me of J.J. Lalor’s Limited proposed terms of redundancy” on 26 July 2021. There was no further correspondence from the complainant until she submitted the RP9 to them until 23 August 2022; more than a year later. They cite Section 24 of the Redundancy Payments Act which says a claim for a redundancy payment should be made before the end of 52 weeks from the date of termination and allows this to be extended to 102 weeks if an Adjudication Officer considers there to be “reasonable cause” for the delay. |
Findings and Conclusions:
The complainant was employed by the respondent for more than 52 years when she was laid off because of the Covid-19 pandemic in March 2020. There was no communication between the parties until June 2021 when the complainant initiated a limited correspondence between the parties which was vague and inconclusive on both sides. It appears the respondent was not expecting the complainant to want to return to work. The complainant would have been happy to be made redundant. In August 2022 she sent an RP9 form to the respondent. A difficulty I have is when/if the complainant was dismissed. On 30 June 2021 the complainant was informed “the franchise has been discontinued”. On 19 July she was told “the franchise is no longer in operation, therefore unfortunately your job in Veritas, Lower Abbey Street is redundant”. However, on 4 August 2021 she was informed “We didn’t communicate your position with JJ Lalor Limited was redundant, only that the franchise of JJ Lalor in Veritas 7/8 Lower Abbey is no longer in operation” and the complainant was told her position was available in in their main location. I consider the letter of 19 July 2021 to be clear in stating the complainant’s job is redundant and this I take to be the date of dismissal. However, no redundancy payment was made and shortly afterwards the respondent told the complainant a position was available in their main base. The complainant did not respond to this offer and submitted an RP9 form dated 23 August 2022, claiming redundancy following a lay-off. I conclude the complainant was dismissed by way of redundancy following a period of lay-off on 19 July 2021 and have to look as section 24 of the Redundancy Payments Act to look at time limits. “(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment— (a) the payment has been agreed and paid, or (b) the employee has made a claim for the payment by notice in writing given to the employer, or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39. (2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum. (2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled. (3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General— (a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and (b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.“ The complainant did not submit the RP9 within 52 weeks. However, I note the final letter from the respondent dated 4 August 2021 told the complainant that she will be duly informed of work schedules and hours available in September. This did not happen. Again, the respondent left the complainant in limbo. In these circumstances I use my discretion to extend the time limits to 104 weeks. I find the complaint comes within the requirements of sections 11 and 12 of the Redundancy Payments Act and I award the complainant a redundancy payment lump sum based on the following: Start date: June 1967 Termination date (when RP9 served): 23 August 2022 Weekly gross pay: €269.84 Period of lay-off: 18 March 2020 to 19 July 2021 These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts 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.
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 complaint succeeds and award the complainant a redundancy lump sum based on the following: Start date: June 1967 Termination date (when RP9 served): 23 August 2022 Weekly gross pay: €269.84 Period of lay-off: 18 March 2020 to 19 July 2021 These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3: During, and only during, the 3-year period ending with the date of termination of employment, none of the following absences 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 (Consolidation) Act 1993, (b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a), (c) absence by reason of lay-off by the employer. During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy: Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment. Reckonable service runs from the date of commencement of employment in June 1967 to the time of lay-off on 18 March 2020. The Act at Schedule 3 provides for pro-rata determination of service: If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year. Statutory Redundancy is calculated as follows: Number of years’ service: start date June 1967 to the date of layoff on 18 March 2020. Weeks due under the scheme: 2,746 Gross weekly wage: €269.84 Statutory redundancy entitlement: weeks x gross weekly wage I determine that the complainant is entitled to statutory redundancy based on the facts as detailed Based on service of 2,746 reckonable weeks/52= 52.80 years x 2= 105.60 weeks x €269.84 = €28,495.10 + bonus week €269.84 = €28,764.94. |
Dated: 04-08-2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
Lay-off - redundancy |