ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057837
Parties:
| Complainant | Respondent |
Parties | Karolina Prostanska | Cagney Maintenance Services Limited t/a Samsic Facilities |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| Shane Curran, CEO Letitia Burrita, Employee Relations/HR Advsisor |
Complaint:
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-00070065-001 | 18/03/2025 |
Date of Adjudication Hearing: 21/07/2025 and 21/01/2026
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A Complainant must be able to show a minimum two years (104 weeks) of service in the employment. The Complainant herein qualifies.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.
The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).
RP9 Process:
An Employee may be laid off or put on short time in response to a change in circumstances which needs to be temporarily addressed by the Employer. An Employer can lay a person off for a temporary period and must give notice and reasons justifying this step. The Employer can also put the Employee on short time (which is defined as a regime where an employee’s hours of work are reduced to less than half of what is normal).
Part A of Form RP9 is usually served by the Employer on the Employee as notice of temporary short time or lay off.
Ideally, a Contract of Employment should reference the entitlement to put an employee on lay off or short time. Otherwise, it is not clear that an Employer can deduct wages per the Payment of Wages Act.
If an employee has been on short time (less than half wages), or been laid off for four or more consecutive weeks, or for a period of six or more weeks within a period of thirteen consecutive weeks, the employee can give Notice in writing of the intention to claim redundancy on the expiry of that thirteen-week period (this is exercised usually under part B of the RP9 Form). This may also be sought not later than four weeks after the cessation of the lay off or short time. The Employee must give the employer the notice required or specified in the Contract of Employment or if none exists then must give at least one week’s Notice of intention to claim Redundancy. In such circumstances the Complainant is entitled to Statutory Redundancy but loses the right to Statutory Notice.
There can be no doubt that the Employer has a right to Counter this application but Part C of the RP9 very clearly states that any such counter notice must be in writing and must be given within seven days of service of the employee’s notice initial notice in writing. Also, the Counter Notice should indicate that there will be a commencement of full-time work within the next four weeks of the date of service of the Complainant’s Notice.
A person on lay off may apply for jobseeker’s allowance. The person on short time may be entitled to short time work support for those days he or she is laid off.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.
In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the complaints being made by the Complainant in her preferred language. The interpreter did not guide or assist the Complainant. The Interpreter simply interpreted what was being said by the Complainant. I perceived there to be no difficulty in communication between the Interpreter and he Complainant.
The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 18th of March 2025. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. The Complainant was assisted by an interpreter. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. I was provided with a booklet of documents on the 10th of July 2025 in advance of the first day of hearing. The Complainant relied on the complaint raised in her complaint form as follows:- I sent the employer RP9 form on 5th March 2025 due to lay off period extended over 4 weeks. I have received confirmation of receipt and I haven’t received the offer yet. No objection was raised to any of the materials relied upon by the Complainant in making her case. After the second hearing date the Complainant re-affirmed her argument by way of a written submission dated the 26th of January 2026. Although I did not invite this submission, I did share it with the Respondent for comment as I was of the view that it was a re-affirmation of evidence already provided but nonetheless needed to be shared. The Complainant alleges that she is entitled to a redundancy payment. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Summary of Respondent’s Case:
The Respondent entity represented itself through the evidence presented by the CEO and the HR Advisor. The Respondent provided me with two written submissions the first of which was presented on the first day of hearing and the second of which arrived prior to the second day of hearing. The late arrival of the submission at the July hearing gave rise to a postponement at the request of the Complainant. I have additionally heard from the two witnesses for the Respondent. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent rejects that there is an entitlement to a Redundancy payment where suitable alternative engagement was offered. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the lengthy evidence adduced by both sides herein. The Complainant commenced her employment herein in June of 2008. She had commenced her employment with the Respondent entity (or a previous pre-transfer iteration of the entity) as a general cleaner and over time had risen to site supervisor. The Complainant had moved from part time to full time in 2016. She was on a 40-hour week at a rate of €16.00 per hour (€640.00 per week). In December of 2023 the Complainant went out on her maternity leave. The Complainant took whatever leave was due to her including paid and unpaid parental and maternity leave as well as any annual leave accruing. The Complainant was due back in the workplace on the 5th of February 2025. Just prior to her return date the Complainant received notification that she was being laid off. The letter from HR read as follows: 31st January 2025 Dear Karolina Further to your conversation with Wioleta Steciuk about the closure of the site you were working on, it is with regret that the company now has to notify you that you will be laid off without pay in accordance with your contract, with effect from 5th February 2025. May we assure you that the company is doing everything possible to bring you back to work and will notify you as soon as you are required to recommence work. We will contact you with any updates regarding next steps. As you may be entitled to benefits, this letter should be taken to your local Social Welfare office as proof of your being laid off. Your Sincerely, Letitia Buita Employee Relations/HR Advisor It is noted that the company specifically reserves the right to lay off employees where it is unable to maintain full employment and this is addressed in the company handbook. The Complainant confirmed in her evidence that she had been made aware that there was a problem with returning to the place of employment she had been working in prior to going out on maternity leave. She had been advised that the Respondent had unfortunately lost the cleaning contract for the site that the Complainant had been in charge of. The losing and gaining of work contracts are one of the hazards of this highly competitive industry. Employees get bedded into a routine of working at a particular site, only to have it pulled at short notice with an immediate scramble by the employer to re-deploy staff. Per the above letter, the lay-off commenced on the 5th of February 2025. The Complainant stayed on lay-off for four full weeks and on the 5th of March 2023 she submitted part B of the RP9 Form back to her Employer. It should be noted that the relevant part of the RP9 form reads as follows:- PART B: Notice of Intention to claim Redundancy Lump Sum Payment in a LAY OFF/ SHORT TIME situation An employee who wishes to claim a redundancy lump sum because of lay off/short time must serve notice of intention to claim in writing within four weeks after lay off/short time ceases. In order to become entitled to claim a redundancy lump sum on foot of a period of lay off, short time or a mixture of both, that period must be at least four consecutive weeks or a broken series of six weeks where all six fall within a thirteen-week period. An employee who wishes to terminate his/her contract of employment by reason of lay off or short time must give his/her employer the notice required by his/her contract or if none is required, at least one week's notice. An employee who claims and receives a redundancy payment in respect of lay off or short time is deemed to have voluntarily left his/her employment and therefore not entitled to notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2001. I am satisfied that the Complainant as of the 5th of March 2025 served a notice of intention to claim redundancy. She was entitled to do this by reason of the fact that she had been on a four-week consecutive period of lay off by the 5th of March 2025. It is important to note that in this jurisdiction the temporary lay-off has a specific legal meaning and comes with defined rights under employment legislation. Lay off can only occur when your employer temporarily cannot provide work, but does not seek to terminate the employment. The laid off party receives no remuneration and the employer must genuinely intend that the situation is temporary. There is a right to Social Welfare Payments which can be applied for immediately and which I understand the Complainant obtained. It is not generally acceptable to leave an employee on lay-off for an extended period of time and this is why an Employee has a right to claim statutory redundancy after a certain period. This can happen where an employee has been laid off for 4 consecutive weeks or 6 weeks in any 13-week period. In response to any such notice being received the Employer does have an opportunity to present a counter-notice: PART C: Counter Notice to Employee's Notice of Intention to claim a Redundancy Lump Sum Notification in respect of this part must be in writing and must be given to the employee within seven days of service of the employee's notice. I contest any liability to pay you a Redundancy Lump Sum on the grounds that it is reasonable to expect that within four weeks of the date of service of your notice, namely, (Date provided) you will enter upon a period of employment of not less than thirteen weeks during which you will not be on lay off or short time any week. The proposed counter notice must be provided in writing within seven days of the service of the employee’s notice of an intention to claim a redundancy lump sum. This is an essential element of the process and one which the Respondent herein failed to adopt. In effect the Employer had until the 12th of March 2025 to confirm in writing that it had no less than thirteen weeks employment for the Complainant commencing within the next four weeks. The Employer did not follow this step and instead engaged in a full-throated process of trying to find the Complainant suitable alternative employment. I accept a considerable effort went into trying to find the Complainant a replacement job which would be similar to the hours, role and site that she had had before going out on her extended Maternity leave. The Complainant fully understood that she was not automatically entitled to return to the exact same job, but she was entitled to return to her employment on terms that were not materially worse. However, the first such job offer was not made until the 1st of April 2025 at which stage the Complainant was already entitled (under the RP9 process) to insist on her redundancy lump sum payment. In the meantime, the Complainant had already lodged her claim for redundancy with the WRC on the 12th of March 2025. The Complainant claimed in evidence that she believes the engagement by the Employer (to find her alternative employment) only came after the WRC complaint had been triggered. I appreciate that the Employer put up at least four potential job offers in its talks with the Complainant. The Complainant declared none of these to be suitable to her. I cannot say that I would agree with the Complainant’s assessment, but the issue is moot in circumstances where the Complainant has, at all times, pressed on with her claim for a redundancy lump sum payment as part of the RP9 process. I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria: Date of Commencement: 9th of June 2008 Date of Termination: 5th of February 2025 Gross Weekly Pay: €640.00 This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
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Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00070065-001 - I allow the Complainant’s appeal against her Employer decision and find that she is entitled to an award under the Redundancy Payments Acts based on the following facts: Date of Commencement: 9th of June 2008 Date of Termination: 5th of February 2025 Gross Weekly Pay: €640.00 A statutory redundancy payment under the scheme is a payment from the Social Insurance Fund by the Department of Social Protection to an employee where an employer is unable to make a statutory redundancy payment.
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Dated: 12th of March 2026.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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