Complainant

Respondent

Parties

Tomasz  Wojcieski

O'Toole Logistic Ltd

Representatives

Self-represented

Mr James O’Toole

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-00059970-001

10/11/2023

The complainant, Mr Wojcieski, worked for the respondent from August 2018 to 14th October 2022. He earned €806 gross per week for 40 hours work. He claims he was made redundant and did not receive a redundancy payment.

Summary of Mr Wojcieski’s Evidence

The complainant said that he commenced employment in mid-August 2018. He said he earned €806 gross per week. On 14th October 2022 he was informed by Mr Padraig O’Toole that his job was over and that he should apply for social welfare. He said he contested this and asked was he being dismissed. Mr Padraig O’Toole then brought him to another job working for a different employer. He said this arrangement was until further work became available with the respondent. He said he was never brought back. Later, he became aware that other workers were brought back. He stayed with the other employer for several months and then left. He said he was paid much less than with the respondent. He said that even though his complaint form was date stamped by the WRC as being received on 10th November 2023, he had submitted it earlier by hand and it was returned to him for further details. He said the delay in submitting a form to the WRC was due to him being unaware of his rights.

Under cross-examination by the respondent, it was claimed that the form was submitted outside of the 52-weeks. The complainant was asked whether he undertook another job directly after 14th October 2022. He replied that the arrangement was for a temporary period and then he was to return when work became available.

Summary of Mr Kaluga’s Evidence

Mr Karuga confirmed that he witnessed the conversations between the respondent and complainant. He said the complainant did not want to move to another employer and that it was only a temporary arrangement pending further work becoming available with the respondent.   

Summary of Mr James O’Toole’s Evidence

Mr O’Toole said that the complainant’s case was that he was made redundant on 14th October 2022 and he submitted the complaint outside the 52 weeks on 10th November 2023. He said that the complainant was not made redundant and that attempts were made to contact him and that he had left Ireland.

Under cross-examination, he was asked why he did not contact the complainant after a month as arranged as he was in the country at that stage and had not left Ireland for several months.

On redundancies within the company, Mr O’Toole confirmed that some staff were let go in 2024 and a few were let go in 2023 due to a slowdown of available work.

Summary of Mr Padraig O’Toole’s Evidence

Mr O’Toole gave evidence that there was a slowdown with work around 14th October 2022 and that he organised work for the complainant at another site with another employer. He said that when things got busy again 6 to 8 months later, he was unable to contact the complainant to bring him back.

Under cross-examination, he was asked why no contact was made when he was in Ireland for 6 months after October 2022. Mr O’Toole then clarified that it could have been 10 or 11 months later when he was looking for him to offer him work. The complainant asked why he brought other workers back and not him and if this was due to the higher rate of pay he was on. Mr O’Toole replied that not everyone was taken back and some workers moved on, as they did not have sufficient service for a redundancy payment.

The Law

The Redundancy Payments Acts 1967 sets out the general right to a redundancy payment.

Section 7(1) provides:

“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”.

Section 7(5) of the Acts provides:

“In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) . . . .”

Section 7(2) of the Acts provides:

“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 . . . .”

Dismissal by employer.

9.—(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or …….

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 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.

Finding

Preliminary Issue of Time-limit

The first issue to establish is whether the complainant submitted the complaint to the WRC within the requisite time, as per section 24 of the Act. In his submission and during the hearing, the complainant said he submitted the form manually and it was returned to him as it was incomplete. He said he submitted the complaint around the same time as his brothers claim. Although he signed the form on 18th September 2023, there was no evidence presented that it was submitted earlier than 10th November 2023. This is outside of the 52 weeks to submit a complaint.

Section 24 (2A) of the Act allows the date to be extended to 104 weeks if the complainant can show ‘reasonable cause’. The reasonable cause outlined by the complainant was that he only discovered later that some staff were brought back and others were let go. It is well established that ignorance of the law and/or unawareness of entitlements are insufficient grounds to extend time under ‘reasonable cause’.

Section 24 (3) of the Act, as above, allows an extension beyond 104 weeks, if the delay in submitting a complaint arose from a breach of the employer to provide a notice of proposed dismissal or a redundancy certificate.

The complainant’s testimony was that he questioned the respondent on his dismissal in or around October 2022. This resulted in Mr Padraig O’Toole driving him to another job with a different employer. This was consistent with the evidence of Mr Padraig O’Toole. Mr Kaluga’s testimony confirmed that the complainant did not want to leave and when he did it was only to be a temporary arrangement with the other employer.

When the complainant was not brought back, he found himself without notice of dismissal or a redundancy certificate. The complainant was vulnerable and at a real disadvantage due to not speaking English.

I am satisfied that the situation which arose for the complainant falls within section 24 (3) of the Act. In circumstances where the dismissal or redundancy was unclear due to the change of employer, this brings the complaint within time.

For the reasons outlined, I decide the complaint is within time. I will now consider the substantive issue of whether there was a redundancy.

Was the complainant made redundant?

Section 7(2) of the Act, outlines the situations when a redundancy can arise. The respondent made a submission in advance of the hearing as follows-

‘Tomasz left his job, and after 12 months comes back looking for redundancy, rules are if leave job not entitled or he has 12 months to put claim in which was not done. We cannot accept this.’

At the hearing, the evidence that emerged was inconsistent with the above statement in that he did not want to leave his job and there was an arrangement that he would return. This was substantiated by the witness testimony of Mr Kaluga. Mr Padraig O’Toole gave testimony that as there was a slow-down of work available he drove the complainant to work with another employer. Both the respondent witnesses gave testimony that there was a slowdown of work available in 2023 and 2024 and that other employees were let go over this period.

For completeness, I am satisfied that the circumstances that arose, were not connected to section 11 of the Act which provides for lay-off and short-time. This was due to the fact that there was no formal notice by the employer of lay-off. Also, Mr Padraig O’Toole as his employer actively secured work with a different employer, which does not adhere to a lay-off as prescribed by the Act.

For the reasons outlined, I am satisfied that the complainant was made redundant on 14th October 2022 due to work being unavailable with the respondent.  

I allow the complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payments Acts.

I allow the complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payments Acts based on the following criteria:

-Date of commencement of employment- 13th August 2018

-Date of termination 14th October 2022

-Gross weekly wage €806 which is capped for redundancy purposes at €600

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

Redundancy