RPD242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037318 (CA-00048694-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 21 August 2023 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 15 February 2024. The following is the Decision of the Court.

DECISION:

This matter comes before the Court as an appeal by J & D Kearns Ltd (the Respondent) against a decision of an Adjudication Officer given in a complaint made under Redundancy Payments Act, 1967 by David Hegarty (the Complainant). The Adjudication Officer decided that the complaint was well founded.

Summary submission of the Complainant

The Complainant submitted that he was told by the Respondent on Monday 13th September 2021 that he and four other employees were to be “let go” on the Friday of the week. The reason given was that work was drying up and the Respondent did not have enough work for everyone. On the Tuesday of that week the Respondent advised the Complainant that they were going to keep him for another two weeks until a particular job was finished. The Complainant asked what would happen after that and he was told that he would be gone.

The Complainant submitted that his employment was terminated by reason of redundancy on 17th September 2021.

The complainant submitted that other workers were “let go” at the same time. He submitted that it was normal in the industry that workers would be “laid off” when work “dried up” and that they would return to work with the employer when new contracts were received.

He submitted that he had thought he would be the last employee to get his notice. He submitted that having been told on Monday that he was to be let go he secured new employment with another employer immediately in that week. He submitted that he did this because “that's what you do” when you were told you would be “let go” and he could not afford to stay at home living on social welfare.

The Complainant submitted that he had “sent the redundancy forms to & D Kearns Limited 2/3 months before submitting my claim to the WRC”.

The Complainant confirmed to the Court when queried that he was unable to provide clarity as to what he meant by the phrase “the redundancy forms” and also confirmed that he could not provide a copy of any such forms. The Respondent at the same time asserted that it was unaware of the meaning of the reference by the Complainant to “redundancy forms”.

Summary submission of the Appellant

The Respondent submitted that its director, Danny Kearns, had a discussion in September 2021 with several employees including the Complainant and flagged that work was scarce and that the Respondent may have to consider temporarily laying off some of its employees. The Respondent submitted that temporary lay-offs were never ultimately implemented.

The Respondent submitted that it appeared however that the complainant did not wish to be in the precarious position of a possible temporary “lay off” coming up to Christmas period and instead immediately found alternative work with another plumbing company and left the Respondent’s employment of his own volition. Six employees took up other employment with another employer at the same time. The role of the Complainant continued after his resignation and no redundancy of the position took place.

The Respondent submitted that, at the hearing of this matter at first instance, the Complainant gave sworn evidence to the effect that he had been advised by the Respondent’s director that if there were going to be “lay-offs” he would be the last one to be laid off.

The Respondent submitted that if temporary layoffs within the meaning of the Act had been implemented, it would have been done by issuing a letter to the employees to bring to the Department of Social welfare. Temporary lay-offs were not actually implemented at all.

The Respondent submitted that the Complainant was never told he was to be permanently let go or made permanently redundant. The Complainant’s case at its highest is that he was told on Monday of the week that he was to be temporarily laid off or was in fact temporarily laid off.

The Respondent submitted that, whereas it is disputed that the Complainant was ever put on temporary “layoff”, by operation of the law a Redundancy within the meaning of the Act could not have been claim by the Complainant until at least four weeks into a layoff.

The relevant law

The Act at Section 7 makes provision 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 F18[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 F19[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,]

The Act at sections 11 and 12 provides in relevant part as follows:

11. Lay-off and short-time

(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.

12. Right to redundancy payment by reason of lay-off or short-time

(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.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

Discussion and conclusions.

The parties chose not to tender testimony under oath when invited to do so by the Court.

The matter before the Court concerns the complaint by the Complainant that his employment was terminated by reason of redundancy on Friday 17th September 2021. He submitted that the Respondent advised him on the Monday of that week that he was to be “let go”.

Notwithstanding that the Complainant in his submission made references to an alleged practice in the industry which involves the temporary lay-off of workers and their recall to employment by their employer, no evidence has been offered to suggest that the Complainant was laid off within the meaning of the Act in September 2021 or that, following the lapse of time specified in the Act at Section 11(1)(a), he served the Respondent with a notice of an intention to claim redundancy in a manner required by section 11(2) of the Act.

On that basis the Court is unable to conclude that the matter before the Court involves the occurrence of a redundancy within the meaning of the Act following a period of lay-off.

Similarly, taking account of the submissions of the parties, who both declined to proffer testimony, the Court has not been provided with any information or evidence to support the proposition that a redundancy of the position of the Complainant occurred on 17th September 2021 or at all. On the balance or probability therefore, the Court concludes that no redundancy within the meaning of section 7(2) of the Act occurred on 17th September 2021.

Decision

The Court, having regard to the written and oral submissions of the parties, concludes that no redundancy within the meaning of the Act occurred as contended for by the Complainant on 17th September 2021.

The within appeal must therefore succeed. The decision of the Adjudication Officer is, accordingly, set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
13 March 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.