Complainant

Respondent

Parties

Derek  Geraghty

Mk Utilities

Representatives

  Self Represented

John Costello Peninsula Business Services Ireland

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-00070839-001

15/04/2025

The hearing was attended by the Respondent, the Complainant and the Complainant’s wife, all of whom took an oath to be truthful with the Commission. Cross examination was afforded to the parties and was taken up to a limited extent.

Having heard from the parties and having received documentation from the Complainant which I undertook request the Case Officer add to the file, I closed hearing having assured myself that there was no further submission or evidence to be presented.

The Complainant was employed as a General Operative (GO) with the Respondent paid Weekly Gross Pay 750.00 working a 35 hour week.

He commenced employment on the 10th of August 2013 and his employment ceased on the 20th of December 2024. After 11 years working for the Respondent  he was given no notice and let go in December 2025 with a handwritten letter for the Department of Social Protection (DSP). The Complainant further sets out that in the 11 years he had never received a payslip or a P60 in 9 years.

The Complainant forwarded correspondence sent to the Respondent requesting monies owed for which there has been no reply. The Complainant felt that they were was left with no option but to seek help from the Citizens Advice office and they have assisted the Complainant in the letters sent.

It is common ground that the Complainant has been employed as a GO since August 2013. 

It is the Respondent case that the Complainant was not dismissed from his employment on the 20th of December 2024. The Respondent denies that the Claimant was offered or made redundant and his employment always has been available to him.   

In or around August 2024 the Respondent experienced business difficulties and did not have the same volume of work available to him. It is not denied that he placed the Complainant on short time.

Despite the fact that there may have only been one or two days work available the Respondent continued to pay the Claimant his full weeks wages, and this continued by until they broke for Christmas on the 20th of December 2024. 

In December 2024 the Respondent explained that due to an ongoing shortfall in available work he would have to reduce the available work to three days per week from January 2025.

The Complainant contacted the Department of Social Welfare to see what, if any, entitlements he may have if he worked three days per week. The Complainant then asked if he could work 2 days rather than 3 and the Respondent was not in a position to facilitate this.

The date of notice and date employment ended as cited by the Claimant are in fact merely the last day the Respondent worked prior to the annual Christmas Holidays. The Respondent assumed that the Claimant would return to work with him in the New Year. 

The Respondent never offered the Claimant redundancy or intended to make him redundant. The Respondent has not employed anyone else in this role in the interim and the role is still there for the Complainant. Despite numerous attempts to return the Complainant to work there was no response to the attempts.

The Respondent denies that the Complainant was let go in December with a handwritten letter for social welfare.  The letter in question was prepared at the Claimant’s request to state that the available work hours had been temporarily reduced to facilitate his application for social welfare if appropriate. The Respondent was completely unaware of any idea of dismissal until the correspondence from the Commission and sets out with the case law that the claim is premature. The Respondent submits that this is what this claim was at the time of its being lodged, as a dismissal had not occurred. The Respondent also refers to the Employment Appeals decision of Employee v an Employer (UD129/2012) wherein the division stated that “a Contract of Employment cannot be terminated by a mere mental process in the minds of one of the parties.”  

The Respondent asks the Hearing to acknowledge that the Complainant is still employed by the Respondent and no redundancy falls due and that it is appropriate to dismiss the complaint as vexatious in line with the Giblin decision. fail. 

The Respondent cited the following case law in support of their case.

Caragh Neeson v John O’Rourke & Sean O’Rourke Chartered Accountants (UD2049/2011)  

 Longford Co Co v Joseph McManus, UDD1753, 

Devaney -v- DNT Distribution Company Ltd, UD 412/1993 

In Able Security Ltd. and Hardjis Langsteins (DWT1319)

Giblin v Bank of Ireland Asset Management Ltd. (DEC-E/2011-161),

An issue in this dispute is if there has been a dismissal by reason of redundancy, specifically in line with the provision of the Redundancy Payments Act. Of note is that there has been no contract of employment issued to the Complainant , nor have there been payslips or associated documents; the Respondent relying upon their Accountant to manage these issues for which they have not complied and where the Complainant gave evidence that he was informed he was not entitled to full social welfare as he had no stamps paid. Additionally, It is quite clear that there is no contractual agreement to allow for any alternative arrangements regarding hours of work.

The key issue in this dispute is if there has been a dismissal by reason of redundancy, specifically in line with the provision of the Redundancy Payments Act. Whilst it is denied that there is a dismissal by reason of redundancy there are three items of evidence examined at the hearing and shared with the parties.

The letter of 25th of November 2024 addressed to “Whom it May Concern”  and set out as being for the DSP. This sets out that the Complainant hours are cut from 5 days to 2 days. There is a later letter dated the 6th of January 2025  again for the DSP that the Complainant is being let go and inviting further queries directly to the Respondent.  From this it is quite clear that the Respondent has actually dismissed the Complainant for lack of work  which is now denied. The Respondent set out that this was issued to assist the Complainant in acquiring benefits from the DSP. It is illogical that the Respondent would seek to deny this is the case at this point,

The final document is the letter of the 11th February 2025 from the Complainant to the Respondent which the Complainant asserts they sent twice and the Respondent admits to having seen at least once. The letter sets out following legal advice the Complainant was requesting his statutory redundancy pay. The only question remaining is if the Complainant could have activated the provisions of the Act to trigger his redundancy in the circumstances of this case.

The issue of layoff and short time is addressed by the Act under s11, where the employment ceases by reason of the non-provision of work. This is excepted where the employer reasonably believes that the situation is not permanent and  given the length of time involved here it is no longer reasonable to presume the situation is not permanent.

The second requirement is that the situation is one were the employee is on less than 50%,  in a scenario where the Complainant has been reduced to 40%.

Section 12 sets out that the situation continuing for four or more consecutive week where the new hours are continuing the employee can give notice of their intention to claim redundancy in writing. The Complainant has done this on 11th of February 2025 and resent this  notice a second time which was clearly more than a mental process in the mind of one of the parties and the Respondent confirmed under Oath that they had sight of this document previously.

Section 13 would have allowed the Respondent  to give counter notice and contest the liability for redundancy pay. No evidence was offered to me that this was done.

In conclusion, it is clear to me that the Complainant has a right to make the application for redundancy pay in the circumstances outlined. In the first instance the evidence shows they were dismissed in the official letter for the attention of the DSP on the 6th of January and in the second instance where the respondent activated his right to redundancy on the 11th of February where the Respondent did have a right at the time to counter this applications and failed to do so.

In all the circumstances, I find that the Complainant is entitled to a statutory redundancy payment in line with the Act from the 6th of January 2025.

 In all the circumstances, I find that the Complainant is entitled to a statutory redundancy payment in line with the Act based on the following criteria:

Commencement: 10/08/2013

Date of notice of termination: 06/01/2025

Date of termination: 06/01/2025

Gross average weekly wage: €750.00 gross weekly

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

Redundancy, insurable employment, counternotice