Complainant

Respondent

Parties

Robert  Shorley

 Karm Transport Ltd.

Representatives

Self-represented

Ray McKenna, Managing 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-00067187-001

06/11/2024

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

CA-00067187-002

06/11/2024

The Complainant commenced his employment with the Respondent on 9 July 2018. His employment terminated on 5 April 2024.The Complainant is seeking statutory redundancy and a payment in lieu of minimum notice.

The Respondent did not contest the claims.

The Complainant referred his complaint to the Director General of the WRC on 6 November 2024 pursuant to section 39 of the Redundancy Payments Act 1967 (as amended).

In the Complaint Specific Details or Statement section, the Complainant stated that the Respondent ceased his employment on Friday, 4 April 2024 and that he was not given any notice.

At the adjudication hearing, the Complainant sought to have an additional claim introduced pursuant to the Minimum Notice & Terms of Employment Act, 1973. The Complainant conceded at the hearing that he was aware that there was a time limit for the referral of a claim to the WRC. However, he said that he was not aware that he needed to submit each claim separately.

In considering the introduction of a new claim, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where at paragraph 6.2 McGovern J held;-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this judgment at paragraph 6.3 that this can only be done so long as ‘the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.’

I also note the dicta of MacMenamin J. in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated at paragraph 6.5:- 

‘It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

‘It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.’

In Clare County Council v Director of Equality Tribunal [2011] IEHC 303, Hedigan J noted that ‘allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates.’

However, I also note Mc Kechnie J in Louth VEC and Equality Tribunal v Brannigan [2016] IESC 40 stating that the Tribunal cannot ‘freelance its inquiry ‘:

‘35.  It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.’

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In this case, the issues that are subject of the Complainant’s dispute were raised in the complaint form. The complaint form was copied to the Respondent.

I am satisfied that, while not selecting the correct separate complaint and legislation applicable, the Complainant did in fact set out in narrative form the substance of the complaint. He identified that he was dismissed with no notice given.

Furthermore, I note that the Respondent consented to the introduction of the new claim and confirmed that it was prepared to deal with the matter. The Respondent confirmed that it would suffer no prejudice or unfairness as a result of the claim being introduced.

I am satisfied, given all of the circumstances of the present case, that I do have jurisdiction to permit the introduction of the new claim and to investigate the complaint.

The Complainant submits that he was employed by the Respondent as a truck driver from 9 July 2018 on a yearly salary of €55,600 gross (€1,069.23 gross weekly) week for a 56-hour week.  His employment was terminated on 5 April 2024 by way of redundancy. He did not receive a statutory redundancy payment when his employment ceased due to redundancy.

The Complainant submits that he supplied the Respondent with a completed RP77 form on 14 October 2024 but received no response.

The Respondent does not contest the redundancy.

Mr McKenna, on behalf of the Respondent company, informed the hearing that that the company closed down very quickly as a result of actions by the Office of the Revenue Commissioners. He conceded that no redundancy was paid to the Complainant as the Respondent had no funds to pay any redundancy.

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 9 July 2018.  The Complainant’s employment terminated on 5 April 2024 due to the Respondent ceasing trading. It was not disputed that the Complainant was paid €1,069.23 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: 9 July 2018

Date of termination: 5 April 2024

Gross weekly remuneration: €1,069.23 (subject to the rates set by the legislation)

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

The Complainant submits that his employment was terminated on 5 April 2024 and he was not given his statutory minimum notice.

The Respondent does not contest the claim.

The Minimum Notice and Terms of Employment Act, 1973 provides as follows.

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.

The Complainant referred his complaint to the Director General of the WRC on 6 November 2024.

Section 41 of the Workplace Relations Act, 2015 states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

By application of the time limit provided for at section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 7 May 2024 to 6 November 2024. The Complainant’s employment was terminated on terminated on 5 April 2024, which falls outside the time limits prescribed by the Act. Pursuant to section 41(6) of the Workplace Relations Act 2015, as amended, the initiating complaint referral form must have been submitted to the WRC by 4 October 2024.

Section 41(8) of the Workplace Relations Act 2015 provides tha,t if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Act to the Director General of the WRC. The general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly Kvaerner Cementation) Limited v Carroll DWT0338 and is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

In Cementation Skanska, the Court further held that:

‘The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.’

The Complainant conceded that he was aware of the time limits for the referral of the WRC complaints and provided no reason for the delay other than that he was not aware that he was required to refer a separate claim under the Act. This in no way explains the delay and does not afford a justifiable excuse for the delay.

I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Act. 

 Accordingly, I find I do not have jurisdiction to decide the claim under theMinimum Notice & Terms of Employment Act, 1973.

I declare this complaint to be not well founded.

Redundancy – minimum notice – time limits