Complainant

Respondent

Parties

Noel  Moore

Michael O Carroll Michael O Carroll Construction

Representatives

Complainant

Seamus Brennan Solicitors

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-00070154-001

21/03/2025

The complainant, Mr Noel Moore, worked for the respondent, Mr Michael O’Carroll.  An issue arose at work in November 2023 and the complainant left the site.  He did not return until early January.  In April the respondent was forced to close.  The respondent’s position is that Mr Moore was not entitled to redundancy due to the break in service that had arisen prior to Christmas.

Evidence was given under oath or by affirmation at the hearing by the complainant, Mr Moore, and, for the respondent by Mr O’Carroll, respondent and Mr Michael Barry an employee of the respondent. All evidence was subject to cross examination.

The complainant worked with the respondent from 17th May 2017 until 26th April 2024.  On 21st November 2023 an issue arose at work, involving the alleged behaviour of the respondent Mr Michael O’Carroll, causing the complainant to leave work.  The complainant informed the respondent that he would come back when the respondent had cooled down.

The complainant did not return to work until 5th January 2024.  The complainant made attempts to contact Mr O’Carroll by phone without success.  The complainant did manage to contact Mr O’Carroll on Christmas week and told him he was owed for two days and also due holidays.  In that phone call the complainant informed Mr O’Carroll that he would return in January.  When the complainant was made redundant in April 2024 he was informed that he was not entitled to a redundancy payment as he did not have 2 years continuous service.

The essence of the matter is that on 21 November 2023 at a house under construction Mr Moore was instructed because of complaints about uneven lumpy plastering to redo it. The instruction was given by Mr O’Carroll in the upper hall of the house in the presence of Mr Michael Barry.  Mr Moore left the site. There was no exchange as alleged by Mr Moore. The matter was entirely unheated. Mr O'Carroll only realised Mr Moore had left after the 1 o'clock break. It was only realised he had left when his vehicle was seen to be gone when the others went to their vehicles to get the materials for their tea break and when Mr Moore did not re-appear in the usual way after coming back from the village. Nothing was heard from Mr Moore until pre-Christmas when he sought holiday pay etc due to him and he did not work again for Mr O'Carroll until 2 Jan 2024. No explanation was given for his absence.  He left without explanation. The absence from 21 Nov 2023 was a definite prolonged break in his employment and a clear abandonment of his employment and a deliberate breach of a simple clear and unambiguous and quite undemanding request to re-do plastering (as to finish) to satisfy a proper customer complaint.  

Section 7 (5) of the Redundancy Payments Act in defining the requisite service to be entitled to a redundancy payment states;

(5) In this section requisite period means a period of 104 weeks continuous employment

There is a presumption that all service is continuous unless proven otherwise.  This means that the burden of proof is on the employer to prove that service was broken.

Varying accounts were given in evidence at the hearing regarding the underlying reason why the complainant left his post on 21st November 2023.  In many respects, the detail of the altercation, if any, is not particularly relevant.  It is clear from the evidence given by the complainant that he was very annoyed at the time. 

It is not unusual for altercations to occur, which, cause an employee to leave work.  It is often the case that when matters have cooled down an equilibrium is restored and normal interactions can resume.  In cases where constructive dismissal is alleged, relating to the behaviour of the employer, there may be an obligation on the employer to make the first approach to the employee and not just to assume that he has abandoned his position.  Constructive dismissal is not alleged in this case however, it would appear that the respondent made no effort to contact the complainant. 

The complainant left his position and did not return for 40 days.  This, by any standards, would be an inordinately long cooling off period.  However, in evidence, the complainant stated that he made a number of attempts to contact Mr O’Carroll by phone.  Mr O’Carroll for his part, in evidence, stated that he had poor coverage and regularly did not receive calls.  I therefore, accept that the complainant did make attempts within that lengthy period of absence to contact the respondent and perhaps resolve the situation.

When the complainant returned in early January, there does not appear to have been any discussion regarding the issues of 21st November, and no evidence was given by the respondent that he raised any issue of abandonment of the post with the complainant.  There is no evidence that the return of the complainant was treated as a new employment. For example no new contract of employment was provided.  I therefore conclude that the complainant remained an employee during the period of time when he absented himself.

I therefore, allow the complainant’s appeal and order the respondent to pay him statutory redundancy based on his employment period from 17th May 2017 until 26th April 2024 in accordance with the provisions of the Redundancy Payments Act 1967 -2012.  The period for which he was not paid, from 21 November 2023 to early January 2024 should be discounted.

I allow the complainant’s appeal and order the respondent to pay him statutory redundancy based on his employment period  from 17th May 2017 until 26th April 2024 in accordance with the provisions of the Redundancy Payments Act 1967 -2012.  The period for which he was not paid, from 21 November 2023 to early January 2024 should be discounted.

Continuous employment for the purposes of redundancy