RPD2511

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039414 (CA-00051068-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 8 September 2024
in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place
on 22 May 2025.

The following is the Decision of the Court.

DECISION:

This is an appeal by Mullingar Arts Centre Company Limited by Guarantee against an Adjudication Officer’s Decision given under the Redundancy Payments Act 1967(the Act). The Adjudication Officer held that the claim by the Complainant for redundancy under the Act was well founded. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Carroll is referred to as the Complainant and Mullingar Arts Centre Company Limited by Guarantee is referred to as the Respondent.

Background

 The Complainant commenced employment with the Respondent on 28 November 1998. While initially there was disagreement about when she commenced, the parties following a short break for them to engage, agreed that she had commenced in 1998. It was not in dispute that the Complainant had never been provided with a contract or her terms and conditions of employment. The Complainant who was placed on layoff arising from COVID-19, sought a redundancy payment. The Respondent denied that she was entitled to same. The Complainant lodged her complaint with the WRC on 9/6/2022.

 Summary of Complainant’s submission

The Complainant’s representative submitted that she was placed on lay-off arising from the Covid-19 Pandemic. On 14 April 2020 she received correspondence from the Respondent advising that her lay-off was extended until 5 September 2020.   On 16 June 2020 she received further correspondence advising that the Arts Centre was re-opening on 20 July 2020, but they could not guarantee her re-employment and that her lay-off continued.

 In September 2021 during a phone conversation with the centres Director Mr Lynch the Complainant was informed that because of her age and the fact she was in receipt of a State Pension she would not qualify for redundancy payment.  By letter of 27 September 2021 the Complainant informed the Respondent that she had an entitlement to claim statutory redundancy and requested that she be made redundant. No response was received. She followed up with an email of 12 October 2021 and again no response was received.

On 26 November 2021 the Complainant submitted an RP9 form notifying the Respondent of her intention to claim redundancy lump sum. This form contained the incorrect date in that it stated 26/11/20 but it should have stated 26/11/21 the date the form was submitted and signed. On 2 December 2021 she received a letter form the Respondent advising that her lay-off was extended to 30 June 2022. By letter of 21 December 2021 the Complainant’s representative wrote to the Respondent again requesting her statutory entitlements and attaching the RP9 form. No response was received.

In July and August 2022, the Complainant’s representatives engaged with the Respondent on an informal basis, but no resolution was reached. On 15 July 2022 the Respondent wrote to the Complainant offering her position back from 3 September 2022. By letter of 29 July 2022 the Complainant’s representatives wrote to the Respondent advising that this was a redundancy situation as they had not responded to the RP9 form as required by statute. The Complainant lodged her complaint with the WRC on 9 June 2022.

The statute clearly sets out that once an RP9 is issued the employer if they are not agreeing that a redundancy situation exists, must issue a counter notice offering employment, The Respondent in this case did not respond at all to the RP9 form and therefore the Complainant is entitled to statutory redundancy. At the time the Complainant submitted her RP9 form the Covid -19 Emergency measures applying to the Redundancy Payments Act had been lifted. The Complainant has made numerous attempts to secure her statutory entitlement, but to date the Respondent has refused to pay her same.

Summary of Respondent’s submission

The Respondent in their submission contested the date of commencement however, following a short break they accepted that the Complainant commenced work with the Respondent in 1998. They accepted that she had not been given a contract or a statement of her terms and conditions of work at any time during her employment.

The Respondent’s representative submitted that the Respondent received the RP9 form dated 26 November 2021 claiming statutory redundancy arising from a layoff period from March 2020 to 26 November 2020. This period fell during a period when the provisions of the Covid 19 Emergency Provisions Act were in place, and such claims were disallowed. On that basis the Respondent took no action on the matter, and it is their submission that they were not obliged to respond to the Complainant.

By letter of 21 December 2021 the Respondent received correspondence from the Complainant’s representative stating that a copy of the previous form was attached. However, the form attached showed the period of layoff as being from March 2020 to 26 November 2021 and not November 2020 as in the original form. The form was dated the same as the first form 26 November 2021.   The Representative for the Respondent submitted that as the Complainant had not specifically drawn their attention to the fact that the date on the form had been corrected, the Respondent was within its rights just to ignore the correspondence which it did.

 The Respondent had at all times intended to bring the Complainant back to work and at no time intended to make the Complainant redundant. A key issue in this case was the impact of the government Covid-19 Regulations on the Respondent’s business. The Respondent because of the nature of their business was doubly disadvantaged in that they were prevented from resuming their normal activities, and, once the emergency legislation relating to redundancy was lifted on 30 September 2021 their employees could claim redundancy.  It was his submission that it was never the intention of the Government to disadvantage employers in this way and on that basis the Complainant should not be entitled to claim redundancy.

Applicable law

 The Redundancy Payments Act 1967 states as follows;

Section 12. Right to redundancy payment by reason of lay-off or short-time.

(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.]

12A.—(1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

(2) Before the expiration of the emergency period, the Government may, at the request of the Minister made—

(a) after consultation with the Minister for Health,

(b) with the consent of the Minister for Public Expenditure and Reform, and

(c) having had regard to the matters referred to in subsection (3),

by order specify a date that is later than the expiration date of the emergency period specified in the definition of "emergency period" or the last order made under this subsection, as the case may be, and the emergency period shall be read as extending to, and including the date so specified.

(3) When making an order under subsection (2), the Government shall have regard to the following:

(a) the nature and potential impact of Covid-19 on individuals, society and the State;

(b) the capacity of the State to respond to the risk to public health posed by the spread of Covid-19;

(c) the policies and objectives of the Government to protect the health and welfare of members of the public;

(d) the need to ensure the most beneficial, effective and efficient use of resources;

(e) the need to mitigate the economic effects of the spread of Covid-19;

(f) the need to ensure a continued attachment to the labour market for workers who have been temporarily laid off or put on short-time as a result of Covid-19;

(g) the need to protect the relationship between employee and employer during the emergency period;

(h) the need to mitigate the increased risk of insolvencies in the event of a substantial number of redundancies occurring over a short time period resulting in permanent job losses.

(4) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(5) In this section—

"emergency period" means the period beginning on 13 March 2020 and ending on 31 May 2020;

"Covid-19" means a disease caused by infection with the virus SARS-CoV-2 and specified as an infectious disease in accordance with Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 (S.I. No. 390 of 1981) or any variant of the disease so specified as an infectious disease in those Regulations.

Section 13. Right of employer to give counter-notice

(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of section 12 and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

Discussion and Decision

It was not disputed that the Complainant was placed on layoff in March 2020 and remained on lay-off both in November 2021 when she submitted the RP9 form and when her representatives re sent it in December 2021. Nor was it disputed that section 12A of the Act was only in being for the period 13 March 2020 to 30 September 2021 and therefore was not relevant to the claim before the Court.

The Representative for the Respondent confirmed that it had not availed of section 13 of the Act and given the Complainant counter notice.  In fact, it was the Respondent ‘s submission that they chose to ignore the RP9 form they had received.  The Respondent was fully aware that in November 2021 the Complainant was still on lay off, but they submitted that the error in the date on the form was sufficient for them to ignore it and to nullify her statutory rights.  They further submitted that the form sent in December with the corrected date could not save her claim for redundancy and as was the Respondent’s right, they ignored the form and did not issue counter notice.  The Respondent’s representative offered no legislative or case law precedent to support their position that an error on the form nullified her statutory rights, or their position that the error superseded the statutory requirement on the Employer to issue counter notice if he was not accepting the Complainant’s claim for redundancy. 

 The Court noting that there was no prohibition at the time the Complainant sent in her RP9 Form and accepting that there was an error in the form in that if indicated that layoff had ceased in 2020, does not accept the Respondent’s submission that this negated the Complainant’s statutory entitlements. The Respondent was aware that the lay-off had not ceased in 2020 and was still in being when the form was submitted. A corrected form was also submitted to the Respondent.  The fact that the Respondent chose to ignore the correspondence rather than seek clarification is a matter that the Court can take into consideration but more importantly the fact that the Respondent chose not to exercise its statutory right to serve counter notice  means the Court must find that the appeal fails.

In all the circumstances, the Court, therefore, finds that the Complainant is entitled to a statutory redundancy payment based on the following criteria:

Commencement: 27/11/1998

Date of notice of termination: 26/11/2021

Date of termination: 25/12/2021 (being four weeks after the issue of the RP9 form)

Gross average weekly wage: €174.00

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
10 June 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.