Complainant

Respondent

Parties

James  Cosgrave

Sean Mc Carthy Plant Hire Ltd .

Representatives

Self-represented 

Sean McCarthy, Director

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-00069105-001

07/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00069410-001

19/02/2025

The Complainant commenced his employment with the Respondent on 1 March 1999. His employment terminated on 31 January 2025.

On 7 February 2025 the Complainant referred to the Director General of the WRC his claim pursuant to the Redundancy Payments Act, 1967.

On 19 February 2025 the Complainant referred to the Director General of the WRC his claim pursuant to the Minimum Notice & Terms of Employment Act, 1973.

There was no dispute that the Complainant worked 39 hours per week and his weekly pay was €526.50 gross on the termination day.

In his WRC complaint referral form, the Complainant submits that he received notice of redundancy on 27 January 2025. He finished up on 31 January 2025, but the Respondent did not pay him his redundancy or notice period.

Summary of direct evidence and cross-examination of the Complainant

In his evidence at the adjudication hearing, in response to Mr McCarthy’s evidence regarding the meetings on 10 January 2025 and 14 January 2025, the Complainant did not dispute that the meetings with the employer and the accountant took place and that he was told that the company would shut down. However, he argued that he did not receive notice in writing. The Complainant confirmed that his last day at work was 31 January 2025, and he was paid up until that date.

Summary of direct evidence and cross-examination of Mr Patrick Cosgrave, the Complainant’s brother and a former employee of the Respondent

The Complainant’s brother, Mr Patrick Cosgrave gave evidence that they met with Mr McCarthy and the Respondent’s accountant on 10 January 2025. They were told that the company was in trouble. They were asked to put suggestions forward if they thought it could be saved.

Mr Patrick Cosgrave said that they met again on Tuesday 14 January 2025. He and his brother told the Respondent that they could not come up with a plan to save the company. Mr McCarthy asked them if they would be fine. Mr Patrick Cosgrave said that he had already a job lined up as he knew the company was gone. He started in his new job straight after the bank holiday weekend.

Mr Patrick Cosgrave said that he would not accept anything from the Respondent unless it was in writing.

The Respondent did not contest the claim. Mr McCarthy, on behalf of the Respondent, conceded that the Complainant’s employment terminated by reason of redundancy on 31 January 2025, but no redundancy payment was made to the Complainant.

Mr McCarthy confirmed that his accountant has been in contact with relevant Government Department regarding the matter.

Summary of direct evidence and cross-examination of Mr Sean McCarthy, Director

Mr McCarthy gave evidence that the Respondent’s accountant was incorrect in his letter to the Complainant dated 4 February 2025 where he stated that the Complainant was notified on 27 January 2025 of the company’s closure. Mr McCarthy said that he and the accountant met with the Complainant and his brother on the Friday 10 January 2025. Mr McCarthy said that he told them at that meeting that the company would shut down on 31 January 2025. However, he gave the employees some time to come back to him, in the event that they had any suggestion as to how to save the business.

He invited the Complainant and his brother again to a meeting on 14 January 2025 at which both employees indicated that they had no suggestions as to how to save the business. It was confirmed that the company would close on 31 January 2025, and the redundancy process would follow.

The Redundancy Payments Acts 1967 (as amended) and Regulations made thereunder provide that in order to qualify for a statutory redundancy payment, an employee must (1) have at least two years’ continuous service, excluding any period of employment with that employer before the age of 16 years (2) be in employment which is insurable under the Social Welfare Acts, (3) be over the age of 16 and (4) have been made redundant as a result of a genuine redundancy situation.

The relevant portion of Section 7 of the Redundancy Payments Act 1967 provides as follows:

“7(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided-

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) 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,”

Section 19 of the same Act provides for the payment of a lump sum by the employer as follows:

“19(1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or where by virtue of Section 12 an employee becomes entitled to redundancy payment, his employer shall pay to him an amount which is referred to in this Act as the lump sum.

(2) Schedule 3 shall apply in relation to the lump sum.”

S.I. No. 695/2004 - Redundancy Payments (Lump Sum) Regulations 2004 sets out the current rates.

There was no dispute that the Complainant commenced his employment with the Respondent on 1 March 1999.  The Complainant’s employment terminated on 31 January 2025 due to the Respondent ceasing trading. It was not disputed that the Complainant was paid €526.50 gross per week at the time of the termination of his employment.

The Respondent conceded that, while it did not dispute the Complainant’s entitlement to a redundancy lump sum, it did not pay same.

I allow the Complainant’s appeal. I decide that the Complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts based on the following criteria: 

Date of commencement: 1 March 1999

Date of termination: 31 January 2025

Gross weekly remuneration: €526.50

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

In his WRC complaint referral form the Complainant submitted that on 27 January 2025 he was notified that his position would be made redundant.

The Complainant furnished a copy of an email dated 4 February 2025 from the Respondent’s accountant which stated as follows:

“Your notice was given on 27 January 2025. You are entitled to 8 weeks ‘notice. You have received payment for one week. I confirm that you are now due the following payments:

Redundancy: €27,925

Notice period: €3,685

The company does not have the ability to discharge the sums due to you. A submission will to be made to The Department of Social Protection and the monies due to you will be paid from the Redundancy Payments Scheme.”

Summary of direct evidence and cross-examination of the Complainant

In his direct evidence, in response to Mr McCarthy’s evidence regarding the meetings on 10 January 2025 and 14 January 2025, the Complainant did not dispute that the meetings with the employer and the accountant took place and that he was told that the company would shut down on 31 January 2025. However, he argued that he did not receive notice in writing. The Complainant confirmed that his last day at work was 31 January 2025, and he was paid up until that date.

Summary of direct evidence and cross-examination of Mr Patrick Cosgrave, the Complainant’s brother and a former employee of the Respondent

The Complainant’s brother, Mr Patrick Cosgrave gave evidence that they met with Mr McCarthy and the Respondent’s accountant on 10 January 2025. They were told that the company was in trouble. They were asked to put suggestions forward if they thought it could be saved.

Mr Patrick Cosgrave said that they met again on Tuesday 14 February 2025. He and his brother told the Respondent that they could not come up with a plan to save the company. Mr McCarthy asked them if they would be fine. Mr Patrick Cosgrave said that he had already a job lined up as he knew the company was gone. He started in his new job straight after the bank holiday weekend.

Mr Patrick Cosgrave said that he would not accept anything from the Respondent unless it was in writing.

Mr McCarthy, on behalf of the Respondent, conceded that the Complainant’s employment terminated by reason of redundancy on 31 January 2025 but no redundancy payment was paid to the Complainant.

Summary of direct evidence and cross-examination of Mr Sean McCarthy, Director

Mr McCarthy gave evidence that the Respondent’s accountant was incorrect in his letter to the Complainant dated 4 February 2025 where he stated that the Complainant was notified on 27 January 2025 of the company’s closure. Mr McCarthy said that he and the accountant met with the Complainant and his brother on the Friday 10 January 2025. He told them at that meeting that the company would shut down on 31 January 2025. However, he gave the employees some time to come back to him, in the event that they had any suggestion as to how to save the business.

He invited the Complainant and his brother again to a meeting on 14 January 2025 at which both employees indicated that they had no suggestions as to how to save the business. It was confirmed that the company would close on 31 January 2025, and the redundancy process would follow.

The Act provides that every employee who has been in the continuous service of an employer for a period of 13 weeks or more is entitled to a minimum period of notice, varying from one week to eight weeks according to the length of service.

“4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.”

It was not disputed that the Complainant was entitled to eight weeks’ notice.

The events surrounding the termination of the Complainant’s employment were also not disputed. There was no dispute that the Respondent met with the employees, including the Complainant on 10 January 2025 and informed them that the business would be shut down but, in the event that the employees had any suggestions as to how it could be saved, these would be considered. The parties met again on 14 January 2025 and it was agreed that there was no plan to save the business and, therefore, the employees would be made redundant as of 31 January 2025.

The Respondent’s accountant then emailed the Complainant on 4 February 2025 and stated that notice was given to him on 27 January 2025.

I note that in his WRC complaint referral form the Complainant asserts that it was given to him on 27 January. The Complainant asserted that he would not accept any notice unless in was in writing and as such he confirmed that he received the backdated notice on 27 January 2025.

The question of the necessity for written notice was addressed in the Supreme Court judgment Bolands Limited (In Receivership) v Ward [1987] IESC 1 reported at 1988 ILRM 382 where Henchy J stated;

“…the Act is silent as to the form of the notice of termination. The Act is concerned only with the period referred to in the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in the notice. There is nothing in the Act to suggest that the notice given should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given – whether orally or in writing, in one document or in a number of documents – conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act will be whether the period of notice is less than the statutory minimum …”.

In Waterford Multiport Limited (In Liquidation) v Fagan [1999] IEHC 158 Mrs. Justice Macken in reference to Bolands stated:

“It was stated by Murphy J. in the High Court, and not appealed from, on this point, that:

‘What is intended is that the employees should have a period of notice - varying with the length of their employment with a particular employer - as to when their employment will terminate.’…”

I accept that at the meeting on 10 January 2025 the possibility of the company closure and redundancy was breached. However, at that juncture it was indicated that saving the business was considered and suggestions were canvassed from the employees. Therefore, I cannot accept that the Complainant was given notice of termination of his employment at that meeting. However, the evidence shows that the Complainant was informed on 14 January 2025 that his employment would terminate due to redundancy on 31 January 2025 and as of this date he knew that he was under notice. His own oral evidence was when he met the Director on 14 January 2025, he was informed that 31 January 2025 would be his finish date. The Respondent maintained him on salary until 31 January 2025.

The matter is complicated by the fact that the Respondent’s accountant issued an email on 4 February 2025 and backdated the notice to 27 January 2025. The Complainant argues that he would only accept a written notice, albeit I note that he accepted the backdated notice. I don’t accept that the original notice was invalidated by the accountant’s email of 4 February 2025.

Having considered the above, I find that the Respondent gave the Complainant notice during the meeting on 14 January 2025 with the notice expiring on the 31 January 2025. This amounts to 2 weeks and three days. The Complainant was entitled to eight weeks’ notice.  It is clear that the notice did not comply with the statute. I find that that section 4 was contravened by the employer in relation to the Complainant.

I declare this complaint to be well founded. I find that that section 4 of the Act was contravened by the employer in relation to the Complainant.

I direct the Respondent to pay to the Complainant €2,933.34 (which is the equivalent of 5 weeks and 4 days approximately) in compensation for any loss sustained by the Complainant by reason of the contravention.

Redundancy – minimum notice-