Complainant

Respondent

Parties

Noel  Proctor

 Sean Boyle Architects

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-00073843-001

28/07/2025

The complainant gave evidence on affirmation.

He says that he did not receive a redundancy payment on the termination of his employment.

He had been in contact with his former employer in person several times in 2025 seeking resolution of this issue but with no success. He was always told it would be resolved soon, but nothing happened.   He did not receive an RP50 form or similar on being told he was being made redundant in Oct 2024

In April 2025, he got an RP50 form & met with his former employer. He filled out what he could & signed off that he was entitled to the amount of his statutory redundancy payment. As he said he was bankrupt, part 2 of the form needed to be filled out which has never been completed.

There are supporting documents and a statement of affairs citing his inability to pay. This is still outstanding.

The entity which he was employed by was being wound up but he was offered employment by the new entity only on the basis of a contract for services. At no stage before he left was he offered the option of a contract of service.

The respondent gave evidence on affirmation.

He had been the principal in the trading entity which ran into financial and trading difficulties due to a default on substantial payments due to the practice. The new trading entity is now run by a family member.

While he accepts that initially the employees were only offered continuing employment on the basis of a contract for services, in due course they (in almost all cases) were given standard contracts of employment at their request. He could not say specifically when this was agreed but thought it was before the complainant left the employment.

In response to a question he says this option was also available to the complainant, but the complainant never raised it.

The complainant was also seeking to move to work on a part time basis which did not suit the respondent.

Based on the very limited pre-hearing written submissions this initially appeared to be a straightforward complaint related to entitlement to a redundancy payment,

It turned out that they told only a part of the story, and the oral evidence revealed a slightly more complex situation.

At the hearing the respondent claimed that the complainant had not been made redundant at all.

He outlined a change in the operation of his architectural practice in which it was taken over and transferred to another entity (run by his daughter) and in which he remained as a part time employee as he is semi-retired and works only a few days a week.

He claimed that the option to transfer to this new entity was also available to the complainant, however this was to be on the basis of a contract for services and not as a regular ‘employee’.

In passing, it is important to remind parties that colluding to place employees outside the proper Revenue and employment law framework, whether on the basis of some mutual agreement between them or not is, to put it no more strongly, a highly hazardous enterprise.

There are objective legal criteria determining the correct employment status of employees and it is not open to parties to bypass them unless this is justified by the actual nature of the contract between them and by reference to the legal tests.

Apart from this status having a bearing on statutory employment rights it also has implications for the tax status of the worker, and any attempt to effectively place a person incorrectly outside the PAYE system has obvious implications.

(See Revenue Commissioners v Karshan (Midlands) Limited Trading as Domino’s Pizza [2023] IESC 24 and subsequent Revenue Guidelines for determining self-employment etc.)

But returning to the complaint in hand, the question can be reduced to whether the complainant was made redundant or not, and, if so, was there an offer of reasonable alternative employment?

The Redundancy Payments Acts 1967 to 2007 section 7 provides the legislative basis for assessing redundancies in this jurisdiction. A valid redundancy situation is deemed to have occurred where a dismissal occurs "wholly or mainly" from significant change under a number of categories set out in the section.

The facts of this case do not fall very easily into any of the scenarios set out there and might more easily fit into a complaint under the Protection of Employment (Transfer of Undertaking) Regulations.

But  the overarching requirement in a redundancy is that there be significant change, and the specific type of change envisaged in the Act is nonetheless discernible here. 

Cutting to its essence, the respondent decided to change its business model but (and again overlooking the TUPE Regulations) he was willing to continue its business without the complainant and was prepared to let him go in circumstances where he was willing to continue working.

Put simply his job was shed in the process whatever way one looks at it, and this is good enough for the definition of a redundancy.

The fact that he may also have been seeking to move to part time work does not change the fact that he was, at the point of the transition to the new entity, available to continue working with the respondent on the basis of his existing contract but the respondent would not permit him to do so.

Any discussions on a revision of his working hours could have taken place after the transfer to the new entity,

The fact that at some stage the respondent allowed the other employees to return to their proper employment status was good news for them but, according to his evidence the complainant was not facilitated with the same option. The respondent witness was not clear on this point, but it is hard to understand why, if agreement was reached with the complainant’s co-workers before he left, the same deal was not extended to him.

So, in practical terms this can be seen to fall within sub section 3 of section 7 of the Redundancy Payments Act which defines one of the applicable situations as follows.

3)       Where an 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.

This is reinforced by the willingness of the respondent to proceed with carrying out its work without him.

On the question of whether the offer of employment as a contractor was reasonable, I find that it was not and the complainant acted reasonably in refusing to change his status to one of a contractor for services and this cannot be considered a reasonable offer in the circumstances.

Accordingly, I find that the complainant was made redundant on January 1st, 2025, and is entitled to a redundancy payment based on his continuous service from May 3rd, 2015.

Complaint CA-00073843 is well founded. I find that the complainant was made redundant on January 1st, 2025, and is entitled to a redundancy payment based his service from May 3rd, 2015.

Redundancy