Complainant

Respondent

Parties

Wieslaw  Pietrzak

Nator Construction Ltd. T/A N Development

Complainant

Respondent

Parties

Wieslaw Pietrzak

Nator Construction Ltd

Representatives

  Self

Andrea Montanelli Peninsula Business Services Ireland

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-00069706-001

03/03/2025

The Respondent stated that the claim is out of time as the Complainant has named the wrong Respondent. His employment was ended by reason of termination for failing to provide sick certs as required by his employer during a lengthy period of absence. He was initially employed as a general operative by Nator Construction Ltd on a fixed term contract that ended and then work continued for a while until all contract work finished. This employment finished in February 2023.

In March 2023, the Complainant was then employed by NDesign and Fabrication Ltd. hereinafter referred to as “NDesign”) which is a separate company disassociated from Nator, in a distinct position of Panel Fabricator, which consisted of producing façade panels in a warehouse. This employment ended by reason of being terminated by the Employer for failing to provide sick certs while out on long term absence.

The Complainant states his case as follows:

“On July 22, 2023, I went to Poland for vacation. During the vacation, I had an accident and went on sick leave starting on July 28, 2023. I immediately informed my boss, Marcin Natorski, about this. My boss contacted me several times regarding my health status, and I kept him updated, confirming that I was still unfit for work. Once, he called to ask if I would give some advice to a new employee if he hired one, and of course, I agreed. On December 16, 2024, I received an email stating that the company was changing its business profile and would no longer have work on construction sites. As a result, my boss could not offer me a position at that time, so he was terminating my contract as of December 23, 2024. In response, I requested the payment of my outstanding vacation days for 2023 and 2024, as well as redundancy pay. I have been employed with the company since October 24, 2017. In response to my emails, I was told that my vacation had already been paid, which is not true because I did not fully use my vacation in 2023 as I went on sick leave, and in 2024, I was also on sick leave. Every sick leave certificate was provided to my boss. He also mentioned in the email that he did not want to cause me any trouble, which is why he did not want to terminate my employment disciplinarily. However, I am unclear about what disciplinary dismissal he was referring to. He did not mention anything about redundancy pay. He also wrote that if I had expressed interest, he could have sent me to an occupational doctor and offered me another position, but he never mentioned this before. My employer always received my sick leave certificates from Poland.”

Mr. Wieslaw Pietrzak (hereinafter referred to as “Complainant”) was employed by Nator Construction Ltd. (hereinafter referred to as “Nator”) on a fixed term contract basis on the 24th of October 2017 and again on the 1st of October 2019 as General Operative to carry out his duties on construction sites in accordance with his employment contract.

The Complainant’s employment with the company Nator was terminated in February 2023 following the completion of projects at construction sites in accordance with first paragraph of his Statement of Main Terms of Employment dated October 2019.

 In March 2023, the Complainant was then employed by NDesign and Fabrication Ltd. hereinafter referred to as “NDesign”) which is a separate company disassociated from Nator, in a distinct position of Panel Fabricator, which consisted of producing façade panels in a warehouse.

The Complainant went on annual leave on 17 July 2023 for 11 days. During his annual leave, the Complainant went on certified sick leave from 28 July 2023 to 30 September 2023. The Complainant was then absent from work from October 2023 until the termination of his employment in December 2024. No medical certificates were provided during this period.

  On 16 December 2024, the Complainant was given notice of termination of his employment by NDesign, effective on 23 December 2024, due to continuous and unauthorised absence.  As opposed to his assertions, the Complainant’s position was never made redundant, and he was clearly advised of it by email on the 9th of January 2025 when the Respondent invited him for a meeting to discuss the case further.

 On the 3 March 2025, the Complainant lodged a complaint with the WRC under Section 39 of the Redundancy Payments Act, 1967, claiming redundancy payment and annual leave.  The Respondent strenuously denies these allegations

This Complaint was lodged with the Commission on the March 2025.

There are two distinct legal entities:

·       Nator Construction Ltd

·       NDesign and Fabrication Ltd

Revenue records show that the Complainant’s employment ended with Nator Construction Limited on the 27th of February 2023. This is also consistent with relevant payslips provided:

Please see attached supporting documentation from Revenue dated February 2023 showing the Complainant’s date of leavingfromNatorConstructionLtd.as 27.02.2023, and corresponding payslip issued by Nator Construction Ltd. dated 28.02.2023 confirming same amount for pay and deductions. Additionally, please see also attached supporting documentation from Revenue dated March 2023 related to NDesign and Fabrication Ltd. and corresponding payslip issued by NDesign and Fabrication Ltd. dated 31.03.2023 confirming same amount for pay and deductions.

The complaint it is alleged brought against the wrong entity. However, that is not the case as Nator Construction Limited is the named legal entity. Some confusion arose about the trading name. However, I am satisfied that the right entity has been named.

The Time Limits for claiming redundancy are as follows:

Time-limit on claims for redundancy payment.

24.—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 F53[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 F53[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 Act also provides for extension of time where reasonable cause is made out to justify such an extension and again further time can be given where the delay arose due to ignorance of the identity of his employer.

The employer states that the Complainant knew his employment was ending with Nator Construction Ltd; however, that was not confirmed in writing to him:

“ It is to be noted that Nator concluded its last construction project on 19 December 2022. Documentary evidence is submitted at pages 48/53 of the Respondent’s Booklet and oral evidence will be provided in the Hearing of the case. 16. It is respectfully submitted that Complainant was aware of these circumstances and well informed that his employment with Nator would last until all outstanding projects were completed. 17. Eventually, the Complainant was employed by Nator until the end of February 2023, when he was verbally notified that Nator was ending its activities permanently and that his employment contract with Nator was terminated. 18. For the aforementioned reasons, it is submitted that any claims for redundancy payment or annual leave against Nator relating to the employment terminated on 23 December 2024, cannot prevail”

The employer also stated that the complaint is time barred:

“Time Limit 19. In addition, it should be noted that the instant claims are irremediably out of time as they have been lodged over two years after the termination of the Complainant’s employment with Nator. 20. In accordance with the Act, the complaint form must be submitted to the WRC within one year of the end of the employment, which in this case would fall in February 2024, however, the Complainant lodged the claim on 3 March 2025. 21. Although the WRC may extend the time limit to 2 years in exceptional cases, the instant claim has been lodged over 2 years, therefore, the Complainant is irreparably statute barred”.

However, the Act also provides a 3rd option to extend time where there is ignorance of the identity of his employer.

(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.

There is no evidence that the employee received at the time of the alleged termination of employment formal notice of his proposed dismissal.

While the two companies are distinct, the Respondent representatives have provided information such as payslips and revenue records for both companies. This arises as the employer attending for NDesign and Fabrication Ltd was also a director for Nator Construction Limited.

Nator Construction Ltd continues and its registered address is:

UNIT 9, PARKWEST DRIVE, O'CASEY AVENUE PARK WEST INDUSTRIAL PARK DUBLIN 12, DUBLIN 12, DUBLIN, IRELAND

The Complainant named the following Complainant:

Nator Construction Ltd. t/a N development Trading as (if applicable): Building Name or Number Unit 9 Parkwest Drive, Parkwest Ind. Est. Street / Road: Town: Dublin 12 County Dublin Country Ireland.

The Complainant has named the right Respondent and I am satisfied that arising from confusion over the identity of the employer was contributed by a failure to give formal notice of his proposed dismissal.

The contract opened at the hearing is a fixed purpose contract.

The notice period in the contract stated that the notice period to be given was one week.

However, the purpose of the contract is vague. There is no evidence of why the contract continued as a fixed purpose contract. There is no reference to any specific project that required the contract to be a fixed purpose contract. The contract contains a term where it can be extended after the probationary period for a project specific purpose or for a mutually agreed period of time. There is no evidence of a statutory notice being provided based on a commencement date in October 2017 and ending in February 2023.

A fixed term employee must have the same rights as a permanent employee unless a difference in treatment is objectively justified. No such difference is justified in this contract as the degree of specificity required is lacking. This means the employee should have been given minimum notice in line with his service prior to ending his contract. No such notice was provided.  As I have formed that view that no statutory notice was given the Complainant can rely upon 24(3) of the Act where there is ignorance of the identity of the employer arising from that omission by the employer. He simply was not aware that in fact his employment had ended with one legal entity and commenced with another legal entity.  

On these findings I determine that the Complainant is entitled to statutory redundancy from Nator Construction Ltd based on the following facts:

·       Employment start date 24th October 2017.

·       Termination date 27th February 2023.

·       Gross weekly salary €598.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

·       Employment start date 24th October 2017.

·       Termination date 27th February 2023.

·       Gross weekly salary €598.

The appeal is upheld and I determine the complaint well founded.

Extension of Time-Confusion relating to Identity of Employers-Omission by Employer