RPD261

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043816 (CA-00054142-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 27 May 2025

in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place

on 18 March 2026.

DECISION:

1. Background

This is an appeal by Zofia Baldowska against the decision of an Adjudication Officer (ADJ-000343816, CA-000544142-002, dated 25 April 2025) in a complaint taken by her against her former employer, Sligo City Hotel, under the Redundancy Payments Act 1967 (‘the Act’).

The Adjudication Officer held that the complaint under the Act was not well-founded.

A Notice of Appeal was received by the Court on 27 May 2025. A hearing of the Labour Court was held in Sligo on 18 March 2026.  At the hearing Zofia Baldowska was assisted by a Polish interpreter.  Submissions were made by representatives for both sides. Key facts were not disputed and neither side proffered witness testimony.

Three linked appeals relating to decisions made under the Unfair Dismissals Acts 1977, the Organisation of Working Time Act, 1997 and the Payment of Wages Act, 1991 were withdrawn at the hearing.  

For ease, the parties are referred to in this Decision as they were at first instance. Hence, Zofia Baldowska is referred to as “the Complainant” and her former employer, Sligo City Hotel, is referred to as “the Respondent”.

2. Background to the appeal

The Complainant commenced employment as a Housekeeping Assistant on 26 March 2009. In March 2020, the hotel closed for business because of the Covid-19 global pandemic.

The parties accepted that the Complainant was placed on layoff for a continuous period from March 2020 until her employment ended. A contention that the cessation of work in March 2020 did not constitute valid notice of a lay-off situation, was withdrawn by the Complainant’s representative at the hearing.

By letter dated 2 December 2022 (albeit incorrectly noted as 2021), the Complainant wrote to the Respondent setting out several grievances relating to her employment. The Complainant contends that the letter of 2 December 2022 constitutes formal notification of her intention to claim a statutory redundancy payment by reason of lay-off.

The Respondent contends that the Complainant cannot rely on that letter to claim an entitlement to statutory redundancy as she did not formally invoke the requirements set out at s.12 of the Act.

3. Summary of the Complainant’s Position

The Complainant was placed on temporary layoff from her employment due to COVID-19. The rationale for the initial layoff may have been reasonable. By December 2022, 633 days had elapsed with no work provided by the Respondent and no concrete reopening plans communicated. No alternative work was offered. The Respondent confirmed the cessation of business operations and made no genuine attempts to provide alternative work or a reopening timeline.

The Complainant’s initial lay-off from her employment crystallised into a redundancy situation by December 2022 due to the passage of 633 days without work. The period of layoff far exceeds any reasonable interpretation of a "temporary cessation".

The Complainant raised a grievance, by letter on 2 December 2022, as an attempt at resolution and provided the Respondent with a reasonable deadline (8 days) to reply. The Respondent failed to provide an adequate response and gave vague assurances without any concrete commitments.  No work or alternative work was offered.

The Complainant is entitled to a redundancy payment having made a valid application for such a payment. The letter dated 2 December 2022 clearly stated the Complainant’s intention to claim redundancy. The letter referenced the prolonged lay-off and requested either redundancy payment or acknowledgment of her constructive dismissal.

Section 12 of the Act requires an employee to give notice "in the prescribed manner". The Appellant's 2 December 2022 letter constituted substantial compliance with s.12 of the Act. The application made was straightforward, unambiguous and legally sufficient. It was made in a manner that should have been clearly understood and acted upon by the Respondent.

Furthermore, the Respondent recognised that a redundancy situation existed and awarded another employee (Mr. C.) a redundancy payment based on identical factual circumstances. The only difference is that the other employee used the prescribed RP9 form while the Complainant used a letter, but both relied on the same underlying facts. The substance of the claim matters more than the specific form used.

The Complainant seeks that the Court direct the Respondent to pay the Complainant her full statutory redundancy lump sum, calculated in accordance with her reckonable service from March 2009 to December 2022 and her weekly pay.

4. Summary of Respondent’s Case:

The Complainant never, at any time during her period of layoff, gave the Respondent notice in writing of her intention to claim redundancy in accordance with s.12. If the Complainant had done this, the Respondent would have availed of its corresponding right to issue a counter notice precluding the employee from claiming redundancy.

By letter dated 2 December 2022 (incorrectly cited as 2 December 2021), the Complainant, via her representative, lodged a written grievance to the Respondent alleging that she (i) was forced to take unpaid leave, (ii) was wrongly refused permission to return to work and (iii) that the Respondent had failed to regularise a potential redundancy situation.

The Complainant sought a ‘Notice of Termination’ within seven days and requested what she believed she was entitled to in terms of a final settlement. She gave notice that should the Respondent fail to proceed with payment she would consider herself to be constructively dismissed from 10 December 2022.

By letter dated 9 December 2022, the Respondent replied to the Complainant to deny that she was refused a return to work and to communicate a genuine belief that the hotel would reopen in early 2023.  By separate letter of the same date, the Respondent suggested a formal meeting to discuss the Complainant’s grievances.

On 14 December 2022, the Complainant emailed the Respondent to say that she considered herself to be constructively dismissed following 560 days of suspension without pay. She lodged several complaints under the Act to the WRC on the same date. A proposed grievance meeting scheduled for 20 December 2022 was postponed.

The Complainant did not formally invoke the requirements of s.12. The Complainant’s correspondence of 2 December 2022 was a statement that her position was made redundant, as opposed to a request for redundancy by virtue of an ongoing layoff. That being the case, the Complainant did not comply with the requirements of s.12 in that notification must expressly be given in respect of an intention to claim redundancy in respect of layoff as defined by s.11 of the Act.

5. The Relevant Law

The Act at s. 11 sets out the definition of lay-off as follows: -

Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

The Act at s.12 provides a right to redundancy payment by reason of lay-off or short-time as follows:

• (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.

The Act as s.13 sets out the right of an employer to give counter-notice as follows: -

(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.

6. Deliberations

The Court must consider whether the letter of 2 December 2022 from the Complainant constitutes a notice of intention to claim a statutory redundancy payment in respect of a lay-off period, as required by s.12 of the Act.

The parties accept that s.12(1)(a) of the Act is satisfied insofar as it is not disputed that the Complainant was laid off from her employment with the Respondent for a continuous period since March 2020.

The Respondent contends the Complainant’s role was not redundant as the hotel reopened in March 2023 under "new arrangements/management". While that may be so, the within complaint was lodged to the WRC on 14 December 2022 and the Court’s jurisdiction is confined to assessing whether a contravention of the Act occurred in the relevant period prior to the lodgement of the complaint.

Did the Complainant comply with the provisions of section 12(1)(b)?

The Complainant relies on s.12(1)(b) of the Act to ground her complaint, which requires that she give her employer notice in writing of her intention to claim a statutory redundancy payment in respect of a lay-off. She contends that the letter of 2 December 2022 complies with s.12(1)(b).

The Respondent contends that the letter is primarily a grievance letter in which the Complainant contends that her position was already “made redundant”, rather than setting out a formal notice of intention to seek a statutory redundancy payment by virtue of an ongoing layoff.

The three-page letter of 2 December 2022 from the Complainant to the Respondent, while in writing, does not expressly reference s.12 of the Act nor does it expressly reference the term “lay-off”.

The letter at page two, states as follows: 

“You have on several occasions indicated (and last on 13th of October 2021) that I should be resuming work but have failed to cause same. You have repeatedly made such promises moving the date of your reopening indeterminately, yet your latest Annual Returns and Financial Statements were filed on 30th of November 2022 (According to CRO records) which signifies ongoing active business status. (sic) “

However, in such case where the business did not reopen hence there was no work available (for your employees) there arose a statutory redundancy situation and you would have been obligated to regularise same and timely terminate (under the Redundancy Payments Acts 1967) any position having become so redundant.

…

In any event:

Your failure to take appropriate and timely action - in that to issue a Notice of termination on Grounds of Redundancy on 2nd of June 2021 or reasonably thereafter - triggers into effect section 9(1)(c) of the Redundancy Payments Act 1967, whereby I shall have become terminated by reason of redundancy; … “

In the Court’s judgment that fact that there is no express reference to the term “lay-off” in the Complainant’s letter is not fatal to her claim.  The term “lay-off” as defined at s.11 of the Act, sets out that “lay-off” is regarded as the cessation of employment in circumstances where (i) the employer is unable to provide work for which an employee is employed, (ii) reasonably believes that the cessation of work is temporary and (iii) gives notice to that effect to the employee prior to the cessation.

In this case, the Court notes that the Respondent fully accepts that the Complainant was on lay-off since March 2020. In the Court’s view, the wording utilised by the Complainant in the letter of 2 December 2022 clearly conveys that the Respondent has failed to provide the Complainant with work for a prolonged period despite giving indications that the cessation of work was temporary in nature.

The Respondent further contends that the letter of 2 December 2022 merely states the Complainant’s viewpoint that her position was already redundant (a position denied by the Respondent), as opposed to stating an intention to formally claim a redundancy payment. It contends that the statement in the letter to “…whereby I shall have become terminated by reason of redundancy” demonstrates that the Complainant had incorrectly construed that her employment had already terminated by reason of redundancy.

The Court had some difficulties with the Respondent’s line of argument in that regard. The Respondent, as the employer, is the only party that could have made the Complainant’s position redundant. The only other avenue to avail of a statutory redundancy payment was by virtue of the Complainant invoking s.12 of the Act and formally seeking a redundancy payment. The Respondent acknowledged that it was familiar with the process, provided at s. 12, whereby an employee can seek a redundancy payment on foot of notifying the Respondent of their intention to seek a redundancy payment.

The Complainant proceeds on page three of the letter in a section headed “Remedy and Desired Outcome,” as follows.: -

“Therefore. I shall expect that you issue within 7 days of this letter i.e. no later than on the 10th of December 2022 a proper Notice of Redundancy Termination of my employment (in recognition of the facts) and that you will arrange for the statutory entitlement to be paid as follows:

1. Statutory Redundancy Payment (13 years of continuous service commenced on the 26th of March 2009) at 27 weeks equivalent pay, i.e. the amount of €10,800. 27 weeks by €400 weekly net pay.)”

In the Court’s judgment the wording utilised by the Complainant where she states that she is seeking a “proper Notice of Redundancy Termination” and payment of a statutory redundancy payment  based on her service from 26 March 2009, conveyed a clear intention on her part that she is seeking to be paid a statutory redundancy payment of foot of a redundancy situation.

In the Court’s view, it was not reasonable for the Respondent to construe the letter of 2 December 2022 as they did. It is clear from the letter that the Complainant is seeking a redundancy payment on foot of a period of prolonged lay-off. To interpret the letter in any other way would be unduly harsh.

Having regard to the submissions made and for the reasons outlined above, the Court finds that the letter of of 2 December 2022 complies with s.12 of the Act and constitutes a formal notice of intention to claim a redundancy payment in respect of a prolonged lay-off period.

An employer may issue counter-notice to an employee who has served a formal notice of intention to claim a redundancy payment, in circumstances where there is a reasonable expectation of the employee re-entering the employment of the employer within a four week period after the date the notice was served, and wherethe employer replies within seven days of that date of the notice with a written counter notice contesting any liability to pay a redundancy payment.

Various correspondence between the parties postdating the 2 December 2022 letter was opened to the Court, including a letter dated 9 December 2022, in which the Respondent advised the Complainant that her employment had never been terminated and that she would receive a letter in the coming days to inform her of a change of employer and to confirm that her conditions of employment would remain unchanged.

No submission was made to the Court that any correspondence from the Respondent to the Complainant, in the four-week period postdating the Complainant’s letter of 2 December 2022, complied with s.13 of the Act such that it could negate the Complainant’s right to a redundancy payment.

In circumstances where the Court has found that the letter of 2 December 2022 constitutes formal notice of the Complainant’s intention to claim a redundancy payment in respect of lay-off, and no counter-notice was issued to the Complainant by the Respondent in compliance with section 13, the Court finds that the Complainant is entitled to a statutory redundancy payment in respect of her service between 26 March 2009 and 10 December 2022.

6. Finding

Accordingly, the Court finds that the Complainant is entitled to a redundancy payment, in line with the Redundancy Payments Acts, in respect of her service between 26 March 2009 and 10 December 2022.

It is agreed that the complainant’s rate of pay was €420 (gross) per week and that figure should be used when calculating the redundancy amount in accordance with Schedule 3 of the Act.

The Court determines that the Complainant’s claim is well founded.  The Adjudication Officer’s decision is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
13th April 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Amy Leonard, Court Secretary.