Redundancy Exceptions
Redundancy Payment Acts
Change of ownership of business.
20.—(1) This section shall have effect where—
(a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or of a part of such a business, and
(b) in connection with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as the previous owner) terminates the employee’s contract of employment, whether by or without notice.
(2) If, by agreement with the employee, the person (in this section referred to as the new owner) who immediately after the change occurs is the owner of the business or of the part of the business in question as the case may be renews the employee’s contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment, section 9 (2) shall have effect as if the renewal or re-engagement had been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner).
(3) If the new owner offers to renew the employee’s contract of employment (with the substitution of the new owner for the previous owner) or to re-engage him under a new contract of employment, but the employee refuses the offer, section 15 (1) or section 15 (2) (as may be appropriate) shall have effect, subject to subsection (4) of this section, in relation to that offer and refusal as it would have had effect in relation to the like offer made by the previous owner and a refusal of that offer by the employee.
(4) For the purposes of the operation, in accordance with subsection (3) of this section, of section 15 (1) or 15 (2) in relation to an offer made by the new owner,—
(a) the offer shall not be treated as one whereby the provisions of the contract as renewed, or of the new contract, as the case may be, would differ from the corresponding provisions of the contract as in force immediately before the dismissal by reason only that the new owner would be substituted for the previous owner as the employer, and
(b) no account shall be taken of that substitution in determining whether the refusal of the offer was unreasonable.
(5) Subsections (1) to (4) shall have effect (subject to the necessary modifications) in relation to a case where—
(a) the person by whom a business, or part of a business, is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or
(b) the persons by whom a business, or part of a business, is owned immediately before a change (whether as partners, trustees or otherwise) include the person by whom, or include one or more of the persons by whom, it is owned immediately after the change,
as those provisions have effect where the previous owner and the new owner are wholly different persons.
F48[(5A) In a case mentioned in subsection (1) (a), the new owner shall be estopped from denying that an employee was in continuous employment (within the meaning of Schedule 3) unless, within 26 weeks of the change of ownership, he notifies the employee of his intention so to deny.]
(6) Nothing in this section shall be construed as requiring any variation of a contract of employment by agreement between the parties to be treated as constituting a termination of the contract.
Annotations:
Amendments:
F48
Inserted (1.09.1971) by Redundancy Payments Act 1971 (20/1971), s. 5, S.I. No. 230 of 1971.
Modifications (not altering text):
C10
Application of section extended (1.09.1971) by Redundancy Payments Act 1971 (20/1971), s. 6(1), S.I. No. 230 of 1971.
Application of section 20 of Principal Act.
6.—(1) Where—
(i) a change relating to the control or management of a business (or part thereof) for the purposes of which a person is employed occurs, but a change in the ownership of the business (or part thereof) does not occur,
(ii) section 20 of the Principal Act would have applied to that change if it were a change in the ownership of that business (or part thereof), and
(iii) an employee of the previous owner accepts, before, on or within four weeks of the termination of his contract of employment with the previous owner, an offer by the new owner of employment in the same place of employment and on terms which are either the same as, or not materially less advantageous to the employee than, his existing terms of employment,
the said section 20 shall apply to that change as if a change of ownership of that business (or part thereof) had occurred.
…
Implied or constructive termination of contract.
21.—(1) Where, in accordance with any enactment or rule of law, any act on the part of an employer or any event affecting an employer (including, in the case of an individual, his death) operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Act be treated as a termination of the contract by the employer, if apart from this subsection, it would not constitute a termination of the contract by him.
(2) Where—
(a) subsection (1) applies,
(b) the employee’s contract of employment is not renewed, and
(c) he is not re-engaged under a new contract, as provided by section 9 (2),
he shall for the purposes of this Act be taken to be dismissed by reason of redundancy if the circumstances in which the contract is not renewed and he is not re-engaged (as provided by the said section 9 (2)) are wholly or mainly attributable to a fact specified in F49[section 7 (2)].
(3) For the purposes of subsection (2), section 7 (2) (a), in so far as it relates to the employer ceasing or intending to cease to carry on the business, shall be construed as if the reference to the employer included a reference to any person to whom, in consequence of the act or event in question, power to dispose of the business has passed.
(4) In this section reference to section 9 (2) includes reference to that section as applied by section 20 (2).
Annotations:
Amendments:
F49
Substituted (1.09.1971) by Redundancy Payments Act 1971 (20/1971), s. 19 and sch., S.I. No. 230 of 1971.
Application of this Part upon employer’s or employee’s death.
22.—(1) Part I of Schedule 2 shall have effect in relation to the death of an employer.
(2) Part 2 of Schedule 2 shall have effect in relation to the death of an employee.
SCHEDULE 2
Part I
Death of Employer or of Employee
Section 22.
1. This Part shall have effect in relation to an employee where his employer (in this Part referred to as the deceased employer) dies.
2. Section 20 shall not apply to any change where by the ownership of the business, for the purposes of which the employee was employed by the deceased employer, passes to a personal representative of the deceased employer.
3. Where, by virtue of section 21, the death of the deceased employer is to be treated for the purposes of this Act as a termination by him of the contract of employment, the employee shall nevertheless not be treated for those purposes as having been dismissed by the deceased employer if—
(a) his contract of employment is renewed by a personal representative of the deceased employer, or he is re-engaged under a new contract of employment by such a personal representative, and
(b) the renewal or re-engagement takes effect not later than eight weeks after the death of the deceased employer.
4. Where, by reason of the death of the deceased employer, the employee is treated for the purposes of this Act as having been dismissed by him, he shall not be entitled to a redundancy payment in respect of that dismissal if—
(a) a personal representative of the deceased employer has made to him an offer in writing to renew his contract of employment or to re-engage him under a new contract,
(b) in accordance with the particulars specified in that offer the renewal or re-engagement would take effect not later than eight weeks after the death of the deceased employer,
(c) either—
(i) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the death, or
(ii) if, notwithstanding that in accordance with the particulars specified in that offer the provisions mentioned in subparagraph (i) would differ (wholly or in part) from the corresponding provisions of the contract in force immediately before the death, the offer constitutes an offer of suitable employment in relation to the employee,
and
(d) the employee has unreasonably refused that offer.
5. For the purposes of paragraph 4—
(a) an offer shall not be treated as one whereby the provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the contract in force immediately before the death of the deceased employer by reason only that the personal representative would be substituted as the employer for the deceased employer, and
(b) account shall not be taken of that substitution in determining whether the refusal of the offer was unreasonable.
6. Where by virtue of section 21 the death of the deceased employer is to be treated as a termination by him of the contract of employment, any reference in section 21 (2) to section 9 (2) shall be construed as including a reference to paragraph 3 of this Schedule.
7. Where the employee has before the death of the deceased employer been laid off or kept on short-time for one or more than one week, but has not given to the deceased employer notice of intention to claim, then if after the death of the deceased employer—
(a) his contract of employment is renewed, or he is re-engaged under a new contract, as mentioned in paragraph 3 (a) or 3 (b) of this Schedule, and
(b) after the renewal or re-engagement, he is laid off or kept on short-time for one or more weeks by the personal representative of the deceased employer,
sections 12 and 13 shall apply as if the week in which the deceased employer died and the first week of the employee’s employment by the personal representative were consecutive weeks, and any reference in those sections to four weeks or thirteen weeks shall be construed accordingly.
8. Paragraph 9 or (as the case may be) paragraph 10 shall have effect where the employee has given to the deceased employer notice of intention to claim, and—
(a) the deceased employer has died before the end of the next four weeks after the service of that notice, and
(b) the employee has not terminated the contract of employment by notice expiring before the death of the deceased employer.
9. If in the circumstances specified in paragraph 8 the employee’s contract of employment is not renewed by a personal representative of the deceased employer before the end of the next four weeks after the service of the notice of intention to claim, and he is not re-engaged under a new contract by such a personal representative before the end of those four weeks, sections 12 (1) and 12 (2) and section 13 (4) shall apply as if—
(a) the deceased employer had not died, and
(b) the employee had terminated the contract of employment by a week’s notice (or, if under the contract he is required to give more than a week’s notice to terminate the contract, he had terminated it by the minimum notice which he is so required to give) expiring at the end of those four weeks,
but sections 13 (1) to 13 (3) shall not apply.
10. (1) This paragraph shall have effect where, in the circumstances specified in paragraph 8, the employee’s contract of employment is renewed by a personal representative of the deceased employer before the end of the next four weeks after the service of the notice of intention to claim, or he is re-engaged under a new contract by such a personal representative before the end of those four weeks, and—
(a) he was laid off or kept on short-time by the deceased employer for one or more of those weeks, and
(b) he is laid off or kept on short-time by the personal representative for the week, or for the next two or more weeks, following the renewal or re-engagement.
(2) Where the conditions specified in subparagraph (1) are fulfilled, sections 12 and 13 shall apply as if all the weeks for which the employee was laid off or kept on short-time as mentioned in the said subparagraph (1) were consecutive weeks during which he was employed (but laid off or kept on short-time) by the same employer.
11. In paragraphs 7 to 10 “week” and “notice of intention to claim” have the meanings respectively assigned to them by sections 2 and 12.
12. Where by virtue of paragraph 3 the employee is treated as not having been dismissed by reason of a renewal or re-engagement taking effect after the death of the deceased employer, then, in determining, for the purposes of section 7, whether he has been continuously employed for the requisite period, the interval between the death and the date on which the renewal or re-engagement takes effect shall count as a period of employment with the personal representative of the deceased employer, if, apart from this paragraph, it would not count for that purpose as such a period of employment.
13. For the purposes of the application, in accordance with section 4 (3), of any provisions of this Act to an employee who was employed in a private household, any reference to a personal representative in this Part shall be construed as including a reference to any person to whom, otherwise than in pursuance of a sale or other disposition for valuable consideration, the management of the household has passed in consequence of the death of the deceased employer.
14. Subject to the preceding provisions of this Part, in relation to an employer who has died—
(a) any reference in this Act to the doing of anything by, or in relation to, an employer shall be construed as including a reference to the doing of that thing by, or in relation to, any personal representative of the deceased employer, and
(b) any reference in this Act to a thing required or authorised to be done by, or in relation to, an employer shall be construed as including a reference to anything which, in accordance with any provision of this Act as modified by this Part (including subparagraph (a)), is required or authorised to be done by, or in relation to, any personal representative of his.
15. Where by virtue of any provision of this Act, as modified by this Part, a personal representative of the deceased employer is liable to pay a redundancy payment, or part of a redundancy payment, and that liability had not accrued before the death of the deceased employer, it shall be treated for all purposes as if it were a liability of the deceased employer which had accrued immediately before his death.
Part II
16. Where an employer has given notice to an employee to terminate his contract of employment and before that notice expires the employee dies, Part II of this Act shall apply as if the contract had been duly terminated by the employer by notice expiring on the date of the employee’s death.
17. Where an employer F110[before the termination of an employee’s contract of employment] has offered to renew his contract of employment, or to re-engage him under a new contract, then if—
(a) the employee dies without having either accepted or refused the offer, and
(b) the offer has not been withdrawn before his death,
section 15 (1) or 15 (2) (as the case may be) shall apply as if for “the employee has unreasonably refused” there were substituted “it would have been unreasonable on the part of the employee to refuse”.
18. (1) Where, in the circumstances specified in sections 10 (1) (a) and 10 (1) (b), the employee dies before the notice given by him under section 10 (1) (b) is due to expire and before the employer has given him notice under section 10 (3), section 10 (3) and section 10 (4) shall apply as if the employer had given him such notice and he had complied with it.
(2) Where, in the circumstances specified in sections 10 (1) (a) and 10 (1) (b), the employee dies before his notice given under section 10 (1) (b) is due to expire but after the employer has given him notice under section 10 (3), sections 10 (3) and 10 (4) shall apply as if the circumstances were that the employee had not died and had complied with the last-mentioned notice.
19. (1) F111[…]
(2) Where an employee, who has given notice of intention to claim, dies within seven days after the service of that notice, and before the employer has given a counter-notice, the provisions of sections 12 and 13 shall apply as if the employer had given a counter-notice within those seven days.
(3) In this paragraph “notice of intention to claim” and “counter-notice” have the meanings respectively assigned to them by sections 12 and 13.
20. F111[…]
21. Subject to the preceding provisions of this Part, in relation to an employee who has died—
(a) any reference in this Act to the doing of anything by, or in relation to, an employee shall be construed as including a reference to the doing of that thing by, or in relation to, any personal representative of the deceased employee, and
(b) any reference in this Act to a thing required or authorised to be done by, or in relation to, an employee shall be construed as including a reference to anything which, in accordance with any provision of this Act as modified by this Part (including subparagraph (a)), is required or authorised to be done by, or in relation to, any personal representative of his.
22. Any right to a redundancy payment which had not accrued before the employee’s death shall devolve on his personal representative.
23. In relation to any case where, under any provision contained in Part II of this Act as modified by the preceding provisions of this Part, the Tribunal has power to determine that an employer shall be liable to pay to a personal representative of a deceased employee either—
(a) the whole of a redundancy payment to which he would have been entitled apart from another provision therein mentioned, or
(b) such part of such a redundancy payment as the Tribunal thinks fit,
any reference in paragraph 22 to a right to a redundancy payment shall be construed as including a reference to any right to receive the whole or part of a redundancy payment if the Tribunal determines that the employer shall be liable to pay it.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
S.I. No. 193/2020 –
Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2020
WHEREAS the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020) made exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as Covid-19 and in order to mitigate, where practicable, the effect of the spread of that disease and to mitigate the adverse economic consequences resulting, or likely to result from the spread of that disease;
AND WHEREAS section 29 of the said Act amended the Redundancy Payments Act 1967 (No. 21 of 1967) to make provision in relation to the operation of certain provisions of the Redundancy Payments Act 1967 for a certain period following the enactment of the Emergency Measures in the Public Interest (Covid-19) Act 2020 and such further period (if any) as may be specified by order of the Government;
AND WHEREAS subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 has defined the “emergency period” for the purposes of that section as ending on 31 May 2020;
AND WHEREAS subsection (2) of section 12A of the Redundancy Payments Act 1967 provided that, before the expiration of the emergency period, the Government may, by order, at the request of the Minister for Employment Affairs and Social Protection made after consultation with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform and having had regard to the matters referred to in subsection (3) of the said section 12A, specify a date that is later than the expiration date of the emergency period specified in the definition of “emergency period” or the last order made under subsection (2) of the said section 12A, as the case may be, and the emergency period shall be read as extending to, and including the date so specified;
AND WHEREAS the Minister for Employment Affairs and Social Protection, having consulted with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, and having had regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , has made a request in accordance with subsection (2) of section 12A of the Redundancy Payments Act 1967 ;
Now the Government, in exercise of the powers conferred on them by subsection (2) of section 12A of the Redundancy Payments Act 1967 , and having had regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , hereby order as follows:
1. This Order may be cited as the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2020.
2. The 10th day of August 2020 is hereby specified as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020)) of the Redundancy Payments Act 1967 (No. 21 of 1967), shall be extended.
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GIVEN under the Official Seal of the Government,
29 May, 2020.
LEO VARADKAR,
Taoiseach.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order extends, until 10 August 2020, the emergency period during which section 12 of the Redundancy Payments Act 1967 shall not have effect.
S.I. No. 290/2020 –
Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2020
WHEREAS the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020) made exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as Covid-19 and in order to mitigate, where practicable, the effect of the spread of that disease and to mitigate the adverse economic consequences resulting, or likely to result from the spread of that disease;
AND WHEREAS section 29 of the said Act amended the Redundancy Payments Act 1967 (No. 21 of 1967) to make provision in relation to the operation of certain provisions of the Redundancy Payments Act 1967 for a certain period following the enactment of the Emergency Measures in the Public Interest (Covid-19) Act 2020 and such further period (if any) as may be specified by order of the Government;
AND WHEREAS subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 has defined the “emergency period” for the purposes of that section as ending on 31 May 2020;
AND WHEREAS subsection (2) of section 12A of the Redundancy Payments Act 1967 provided that, before the expiration of the emergency period, the Government may, by order, at the request of the Minister for Employment Affairs and Social Protection made after consultation with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform and having had regard to the matters referred to in subsection (3) of the said section 12A, specify a date that is later than the expiration date of the emergency period specified in the definition of “emergency period” or the last order made under subsection (2) of the said section 12A, as the case may be, and the emergency period shall be read as extending to, and including the date so specified;
AND WHEREAS the Government by order dated 29th May 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2020 (S.I. No. 193 of 2020) specified the 10th day of August 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Minister for Employment Affairs and Social Protection, having consulted with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, and having regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , has made a request in accordance with subsection (2) of section 12A of the Redundancy Payments Act 1967 ;
Now the Government, in exercise of the powers conferred on them by subsection (2) of section 12A of the Redundancy Payments Act 1967 , and having had regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , hereby order as follows:
1. This Order may be cited as the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2020.
2. The 17th day of September 2020 is hereby specified as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020)) of the Redundancy Payments Act 1967 (No. 21 of 1967), shall be extended.
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GIVEN under the Official Seal of the Government,
4 August, 2020.
MICHE?L MARTIN,
Taoiseach.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order extends, until 17th September 2020, the emergency period during which section 12 of the Redundancy Payments Act 1967 shall not have effect.
S.I. No. 349/2020 –
Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 3) Order 2020
WHEREAS the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020) made exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as Covid-19 and in order to mitigate, where practicable, the effect of the spread of that disease and to mitigate the adverse economic consequences resulting, or likely to result from the spread of that disease;
AND WHEREAS section 29 of the said Act amended the Redundancy Payments Act 1967 (No. 21 of 1967) to make provision in relation to the operation of certain provisions of the Redundancy Payments Act 1967 for a certain period following the enactment of the Emergency Measures in the Public Interest (Covid-19) Act 2020 and such further period (if any) as may be specified by order of the Government;
AND WHEREAS subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 has defined the “emergency period” for the purposes of that section as ending on 31 May 2020;
AND WHEREAS subsection (2) of section 12A of the Redundancy Payments Act 1967 provided that, before the expiration of the emergency period, the Government may, by order, at the request of the Minister for Employment Affairs and Social Protection made after consultation with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform and having had regard to the matters referred to in subsection (3) of the said section 12A, specify a date that is later than the expiration date of the emergency period specified in the definition of “emergency period” or the last order made under subsection (2) of the said section 12A, as the case may be, and the emergency period shall be read as extending to, and including the date so specified;
AND WHEREAS the Government by order dated 29th May 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2020 (S.I. No. 193 of 2020) specified the 10th day of August 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 4th August 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2020 (S.I. No. 290 of 2020) specified the 17th day of September 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Minister for Employment Affairs and Social Protection, having consulted with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, and having regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , has made a request in accordance with subsection (2) of section 12A of the Redundancy Payments Act 1967 ;
Now the Government, in exercise of the powers conferred on them by subsection (2) of section 12A of the Redundancy Payments Act 1967 , and having had regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , hereby order as follows:
1. This Order may be cited as the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 3) Order 2020.
2. The 30th day of November 2020 is hereby specified as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020)) of the Redundancy Payments Act 1967 (No. 21 of 1967), shall be extended.
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GIVEN under the Official Seal of the Government,
15 September, 2020.
MICHEL MARTIN,
Taoiseach.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order extends, until 30th November 2020, the emergency period during which section 12 of the Redundancy Payments Act 1967 shall not have effect.
S.I. No. 545/2020 –
Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 4) Order 2020
WHEREAS the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020) made exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as Covid-19 and in order to mitigate, where practicable, the effect of the spread of that disease and to mitigate the adverse economic consequences resulting, or likely to result from the spread of that disease;
AND WHEREAS section 29 of the said Act amended the Redundancy Payments Act 1967 (No. 21 of 1967) to make provision in relation to the operation of certain provisions of the Redundancy Payments Act 1967 for a certain period following the enactment of the Emergency Measures in the Public Interest (Covid-19) Act 2020 and such further period (if any) as may be specified by order of the Government;
AND WHEREAS subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 has defined the “emergency period” for the purposes of that section as ending on 31 May 2020;
AND WHEREAS subsection (2) of section 12A of the Redundancy Payments Act 1967 provided that, before the expiration of the emergency period, the Government may, by order, at the request of the Minister for Employment Affairs and Social Protection made after consultation with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform and having had regard to the matters referred to in subsection (3) of the said section 12A, specify a date that is later than the expiration date of the emergency period specified in the definition of “emergency period” or the last order made under subsection (2) of the said section 12A, as the case may be, and the emergency period shall be read as extending to, and including the date so specified;
AND WHEREAS the Government by order dated 29th May 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2020 ( S.I. No. 193 of 2020 ) specified the 10th day of August 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 4th August 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2020 ( S.I. No. 290 of 2020 ) specified the 17th day of September 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 15th September 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 3) Order 2020 ( S.I. No. 349 of 2020 ) specified the 30th day of November 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Minister for Enterprise, Trade and Employment, having consulted under subsection (2) of section 12A of the Redundancy Payments Act 1967 and the Employment Affairs and Employment Law (Transfer of Departmental Administration and Ministerial Functions) Order 2020 ( S.I. No. 438 of 2020 ) with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, and having regard to the matters referred to in subsection (3) of section 12A of the said Act , has made a request in accordance with subsection (2) of section12A of that Act;
Now the Government, in exercise of the powers conferred on them by subsection (2) of section 12A of the Redundancy Payments Act 1967 , and having had regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , hereby order as follows:
1. This Order may be cited as the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 4) Order 2020.
2. The 31st day of March 2021 is hereby specified as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020)) of the Redundancy Payments Act 1967 (No. 21 of 1967), shall be extended.
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GIVEN under the Official Seal of the Government,
24 November, 2020.
MICHE?L MARTIN,
Taoiseach.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order extends, until 31st March 2021, the emergency period during which section 12 of the Redundancy Payments Act 1967 shall not have effect.
S.I. No. 103/2021 –
Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2021
WHEREAS the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020) made exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as Covid-19 and in order to mitigate, where practicable, the effect of the spread of that disease and to mitigate the adverse economic consequences resulting, or likely to result from the spread of that disease;
AND WHEREAS section 29 of the said Act amended the Redundancy Payments Act 1967 (No. 21 of 1967) to make provision in relation to the operation of certain provisions of the Redundancy Payments Act 1967 for a certain period following the enactment of the Emergency Measures in the Public Interest (Covid-19) Act 2020 and such further period (if any) as may be specified by order of the Government;
AND WHEREAS subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 has defined the “emergency period” for the purposes of that section as ending on 31 May 2020;
AND WHEREAS subsection (2) of section 12A of the Redundancy Payments Act provided that, before the expiration of the emergency period, the Government may, by order, at the request of the Minister for Employment Affairs and Social Protection made after consultation with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform and having had regard to the matters referred to in subsection (3) of the said section 12A, specify a date that is later than the expiration date of the emergency period specified in the definition of “emergency period” or the last order made under subsection (2) of the said section 12A, as the case may be, and the emergency period shall be read as extending to, and including the date so specified;
AND WHEREAS the Government by order dated 29th May 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2020 ( S.I. No. 193 of 2020 ) specified the 10th day of August 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 4th August 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2020 ( S.I. No. 290 of 2020 ) specified the 17th day of September 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 15th September 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 3) Order 2020 ( S.I. No. 349 of 2020 ) specified the 30th day of November 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 24th November 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 4) Order 2020 ( S.I. No. 545 of 2020 ) specified the 31st day of March 2021 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Minister for Enterprise, Trade and Employment, having consulted under subsection (2) of section 12A of the Redundancy Payments Act 1967 and the Employment Affairs and Employment Law (Transfer of Departmental Administration and Ministerial Functions) Order 2020 ( S.I. No. 438 of 2020 ) with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, and having regard to the matters referred to in subsection (3) of section 12A of the said Act, has made a request in accordance with subsection (2) of section 12A of that Act;
Now the Government, in exercise of the powers conferred on them by subsection (2) of section 12A of the Redundancy Payments Act 1967 , and having had regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , hereby order as follows:
1. This Order may be cited as the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2021.
2. The 30th day of June 2021 is hereby specified as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020)) of the Redundancy Payments Act 1967 (No. 21 of 1967), shall be extended.
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GIVEN under my Official Seal,
23 February, 2021.
MICHE?L MARTIN,
Taoiseach.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order extends, until 30th June 2021, the emergency period during which section 12 of the Redundancy Payments Act 1967 shall not have effect.
S.I. No. 284/2021 –
Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2021
WHEREAS the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020) made exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as Covid-19 and in order to mitigate, where practicable, the effect of the spread of that disease and to mitigate the adverse economic consequences resulting, or likely to result from the spread of that disease;
AND WHEREAS section 29 of the said Act amended the Redundancy Payments Act 1967 (No. 21 of 1967) to make provision in relation to the operation of certain provisions of the Redundancy Payments Act 1967 for a certain period following the enactment of the Emergency Measures in the Public Interest (Covid-19) Act 2020 and such further period (if any) as may be specified by order of the Government;
AND WHEREAS subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 has defined the “emergency period” for the purposes of that section as ending on 31 May 2020;
AND WHEREAS subsection (2) of section 12A of the Redundancy Payments Act 1967 provided that, before the expiration of the emergency period, the Government may, by order, at the request of the Minister for Employment Affairs and Social Protection made after consultation with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform and having had regard to the matters referred to in subsection (3) of the said section 12A, specify a date that is later than the expiration date of the emergency period specified in the definition of “emergency period” or the last order made under subsection (2) of the said section 12A, as the case may be, and the emergency period shall be read as extending to, and including the date so specified;
AND WHEREAS the Government by order dated 29th May 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2020 ( S.I. No. 193 of 2020 ) specified the 10th day of August 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 4th August 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2020 ( S.I. No. 290 of 2020 ) specified the 17th day of September 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 15th September 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 3) Order 2020 ( S.I. No. 349 of 2020 ) specified the 30th day of November 2020 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 24th November 2020 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 4) Order 2020 ( S.I. No. 545 of 2020 ) specified the 31st day of March 2021 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Government by further order dated 23rd February 2021 entitled the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) Order 2021 ( S.I. No. 103 of 2021 ) specified the 30th day of June 2021 as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 ) of the Redundancy Payments Act 1967 , shall be extended;
AND WHEREAS the Minister for Enterprise, Trade and Employment, having consulted under subsection (2) of section 12A of the Redundancy Payments Act 1967 and the Employment Affairs and Employment Law (Transfer of Departmental Administration and Ministerial Functions) Order 2020 ( S.I. No. 438 of 2020 ) with the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, and having regard to the matters referred to in subsection (3) of section 12A of the said Act, has made a request in accordance with subsection (2) of section 12A of that Act;
Now the Government, in exercise of the powers conferred on them by subsection (2) of section 12A of the Redundancy Payments Act 1967 , and having had regard to the matters referred to in subsection (3) of section 12A of the Redundancy Payments Act 1967 , hereby order as follows:
1. This Order may be cited as the Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No.2) Order 2021.
2. The 30th day of September 2021 is hereby specified as the date to which the emergency period, as defined in subsection (5) of section 12A (inserted by section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (No. 2 of 2020)) of the Redundancy Payments Act 1967 (No. 21 of 1967), shall be extended.
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GIVEN under the Official Seal of the Government,
1 June, 2021.
MICHE?L MARTIN,
Taoiseach.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
This Order extends, until 30th September 2021, the emergency period during which section 12 of the Redundancy Payments Act 1967 shall not have effect.
Redundancy Payments (Amendment) Act 2022
Redundancy Payments (Amendment) Act 2022
CONTENTS
Section
1. Definition
2. Covid-19 related lay-off payment
3. Amendment of section 38 of Principal Act
4. Amendment of Act of 2021
5. Short title, collective citation and commencement
Acts Referred to
Companies (Corporate Enforcement Authority) Act 2021 (No. 48)
Redundancy Payments Act 1967 (No. 21)
Redundancy Payments Acts 1967 to 2014
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Number 3 of 2022
REDUNDANCY PAYMENTS (AMENDMENT) ACT 2022
An Act to amend the Redundancy Payments Act 1967 to provide for payments to employees in respect of certain lay-off periods during the period beginning on 13 March 2020 and ending on 31 January 2022; to amend the Companies (Corporate Enforcement Authority) Act 2021 ; and to provide for related matters.
[31th March, 2022]
Be it enacted by the Oireachtas as follows:
Definition
1. In this Act, “Principal Act” means the Redundancy Payments Act 1967 .
Covid-19 related lay-off payment
2. The Principal Act is amended by the insertion of the following section after section 32:
“32A. (1) This section applies to an employee—
(a) who is entitled to a redundancy payment under section 7,
(b) whose entitlement to a lump sum payment under section 19 arises during the period beginning on 13 March 2020 and ending on 31 January 2025, and
(c) who was laid off during the period beginning on 13 March 2020 and ending on 31 January 2022 due to the effect of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.
(2) An employer, on behalf of an employee to whom this section applies, may apply to the Minister for a payment in respect of any periods of lay-off referred to in subsection (1)(c) in the manner determined by the Minister.
(3) If an employer refuses or fails to apply to the Minister on the employee’s behalf for a payment under subsection (2), the employee may apply to the Minister for the payment.
(4) For the purposes of determining an application under this section, a deciding officer may, by notice in writing, require the employer or the employee, as the case may be, to provide such information or documents as are specified in the notice that, in the deciding officer’s opinion, are required for the purpose of determining whether the employee is entitled to a payment under this section.
(5) The notice under subsection (4) shall specify the period, which may be extended by the deciding officer for good reason, within which the information or documents shall be provided.
(6) If, on an application under this section, the Minister is satisfied that the employee is entitled to a payment under this section, the Minister shall pay the sum to the employee out of the Social Insurance Fund.
(7) The amount of a payment under this section is the difference between—
(a) the amount of the lump sum payable under section 19 or 32, and
(b) the amount of the lump sum determined under subparagraph 1 of Schedule 3 as if any periods of lay-off during the period referred to in subsection (1)(c) were included in the calculations of reckonable service within the meaning of Schedule 3.
(8) Where the amount of a payment payable to an employee under this section is disallowed or reduced by virtue of a revised decision of a deciding officer under section 41, any payment, or part of a payment, paid under the original decision shall be repayable by the employee to the Social Insurance Fund.
(9) The Minister may by regulations provide for the method of recovery of an amount repayable by an employee under subsection (8).”.
Amendment of section 38 of Principal Act
3. Section 38 of the Principal Act is amended, in subsection (1), by the substitution of the following paragraph for paragraph (b):
“(b) in relation to the payment from the Social Insurance Fund of—
(i) rebates to employers under section 29,
(ii) lump sums to employees under section 32, or
(iii) payments to employees under section 32A(6) in respect of certain lay-off periods during the period referred to in section 32A(1)(c), or”.
Amendment of Act of 2021
4. (1) Section 11 of the Act of 2021 is amended by the substitution of “Schedule 1” for “Schedule 2”.
(2) This section shall come into operation on the day on which section 11 of the Act of 2021 comes into operation.
(3) In this section, “Act of 2021” means the Companies (Corporate Enforcement Authority) Act 2021 .
Short title, collective citation and commencement
5. (1) This Act may be cited as the Redundancy Payments (Amendment) Act 2022.
(2) The Redundancy Payments Acts 1967 to 2014 and this Act, other than section 4 , may be cited together as the Redundancy Payments Acts 1967 to 2022.
(3) This Act, other than section 4 , shall come into operation on such day or days as the Minister for Enterprise, Trade and Employment may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Cases
Cuan Tamhnaigh Teoranta (Towney Bay Finishing Co. Limited) v Declan McShane
UDD224
Labour Court
3 February 2022
[2022] 33 E.L.R. 103
(3 February 2022)
([2022] E.L.R. 103)
Subject: Employment
Keywords: Alternative employment; Redundancy selection; Unfair dismissal
Unfair dismissal – Redundancy – Unfair selection – Alternative employment – Right to appeal – Mitigation of loss – Unfair Dismissals Acts 1977 (No. 10) to 2015 (No. 16), ss.7, 8A
Facts
The complainant worked a weekend shift for the respondent, who manufactures carpets for the aviation industry. Due to a reduction in demand, the complainant was dismissed for reasons of redundancy. The complainant brought a complaint alleging that he had been unfairly dismissed. He submitted that while genuine reasons for redundancy had arisen, the respondent had not genuinely engaged in considering alternative employment for him nor had he been informed of his right to appeal the respondent’s decision. In particular, he alleged that the respondent’s decision to make his position redundant was done in retaliation for a previous successful claim he had brought to the Workplace Relations Commission (“WRC”) and for his previous referral of a complaint to the Inspection Service of the WRC.
The complainant’s claim for unfair dismissal was upheld by the Adjudication Officer (AO) who awarded him compensation of €12,000. The respondent appealed this decision to the Labour Court.
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Determined by the Labour Court in dismissing the appeal and varying the decision of the AO:
(1) The respondent’s engagement with the complainant was perfunctory and proforma; no meaningful effort was made to consider options for alternative employment for the complainant.
(2) There was no evidence before the court that the complainant was afforded an opportunity to appeal the respondent’s decision to dismiss him for redundancy.
(3) The complainant was, in the circumstances, unfairly dismissed.
(4) The complainant either deemed himself unavailable for work during a period following his dismissal where he was undertaking training, which the complainant denied, or he made no effort to mitigate his loss for this period.
(5) The appropriate redress was compensation in the amount of four weeks’ pay in accordance with s.7(1)(c)(ii) of the Unfair Dismissals Acts 1977-2015.
The full text of the Labour Court determination was as follows:
Background
The employer appealed the decision of the AO to the Labour Court on 6 July 2020 in accordance with s.8A of the Unfair Dismissals Acts 1977-2015. A Labour Court hearing took place on 4 October 2021 and 20 January 2022. The following is the Determination of the court.
Determination
Background to the appeal
This is an appeal on behalf of Cuan Tamhnaigh Teoranta (“the respondent”) from a decision of an AO (ADJ-00023294/CA-00029794-002, dated 27 May 2020) under the Unfair Dismissals Acts 1977-2015 (“the Act”).
The AO found that Mr Declan McShane (“the complainant”) had been unfairly dismissed from his employment with the respondent and made an award of compensation of €12,000 in his favour.
The respondent’s Notice of Appeal was received by the court on 6 July 2020. The court heard the appeal in a virtual courtroom on 4 October 2021 and on 20 January 2022. Two witnesses gave evidence for the respondent: Mr Tony Leahy, Financial Controller and Mr Jason Quornby, Production Manager. The court also heard evidence from the complainant.
The complainant commenced employment with the respondent as a carpet weaver on 29 April 2016. His last day of work with the respondent was 7 July 2019. However, he was paid in lieu of two weeks’ notice.
Hence, his date of dismissal for the purposes of the Act is 21 July 2019.
The respondent’s defence
The respondent’s case is that the complainant was lawfully dismissed for reasons of redundancy, in July 2019, because of the respondent’s decision to discontinue *105 in its entirety the weekend evening shift on which the complainant worked due to a reduction in demand for the type of product for which that shift had been established some 12 years previously. Two colleagues who also worked on the same shift were made redundant at the same time.
The respondent manufactures carpets for the aviation industry.
The witnesses for the respondent gave detailed and cogent evidence in relation to the changing market worldwide for the respondent’s product and, in particular, the reduction in demand for the product type for which the weekend evening shift had been set up, i.e. long, uninterrupted production runs of standard aviation carpet with non-complex designs.
Due to the loss of three significant customers, the respondent’s total output dropped from 262,000 metres in 2018 to 240,000 metres in 2020. The witnesses also told the court that the respondent’s customers are increasingly ordering shorter runs of bespoke carpet that require greater design input and technical support. Such support is available only to the production shifts that the respondent operates on weekdays.
The complainant’s shift, according to the respondent, was not supported by ancillary staff. Therefore, following a review of the business in early 2019 and the formulation of a three-year business plan, a decision was taken to discontinue the weekend evening shift (“Shift A”) as it was no longer profitable or efficient in the light of the change in customers’ requirements.
The respondent, therefore, engaged with the complainant and his two colleagues on Shift A.
The complainant was informed, at a meeting on 29 June 2019, of the review that had been carried out of the business and that Shift A had been found to be unprofitable and the respondent was, therefore, considering discontinuing it.
He was also advised that the respondent was actively considering options to redeploy him elsewhere in the business. He was invited to put forward any proposals he had himself in this regard. It appears that the complainant did not avail himself of the opportunity to suggest how he might be alternatively employed within the business.
A second meeting took place on 7 July 2019 at which the complainant was informed that his employment was being terminated due to redundancy with immediate effect subject to payment of two weeks’ pay in lieu of notice.
The respondent submits that a genuine redundancy situation had arisen in mid-2019 due to the reduction in demand for its product in the circumstances outlined above.
It further submits that the decision to dismiss the complainant arose wholly or mainly from the need to reduce headcount. Finally, it submits that it considered all alternatives to redundancy and notes that the complainant did not avail himself of the opportunity to suggest how his dismissal for redundancy could have been avoided.
The complainant’s case
The complainant gave detailed evidence in relation to the operation of Shift A on Friday, Saturday and Sunday nights. He also stated that he occasionally undertook overtime work during the week. He then went on to tell the court that he had previously successfully referred a complaint under the Organisation of Working Time Act 1997 to the WRC.
This resulted in an award of compensation, payment of which he ultimately received along with his statutory redundancy payment. The complainant had also referred a complaint to the WRC Inspection Service.
An inspection of the respondent’s employment-related records followed from that. The complainant’s two colleagues on Shift A had given evidence in the course of the hearing before the AO into the complaints under the 1997 Act. The complainant also informed the court that he had been a shop steward at the plant for two years after which period he was elected as Employee Safety Representative.
The complainant says that he was not advised by the respondent that he had a right to appeal the decision to make him redundant. He received and retained a statutory redundancy payment of €3,393.32. In response to questions from the court, he said he accepted that a genuine redundancy situation had come about in the respondent company.
However, he said that he believed he had not been fairly selected for redundancy and that the decision to make his position (and those of his colleagues on the A Shift) redundant was taken in retaliation for his previous successful claim to the WRC and for his referral of a complaint to the Inspection Service. The complainant said that there were a number of employees, some of whom are employed as weavers, who had shorter service with the respondent than he had and who were not considered for redundancy.
The complainant gave the following evidence in relation to his efforts to mitigate his loss. He says that he initially approached two businesses in the Killybegs area seeking employment. However, he formed the view that he was unlikely to be successful in obtaining work locally as believed that he was branded as a troublemaker. He, therefore, made a decision to train as an HGV driver.
He completed the necessary training and obtained his licence by mid- December 2019. He got his first driving job in early January 2020 and commenced work on 8 January 2020. This lasted about 10 days and came to an end because the vehicle he was driving broke down and the employer was not in a position to have it repaired. The complainant got a second job shortly after that driving to England and Dublin.
The advent of the Covid-19 pandemic resulted in this job being discontinued. Thereafter, in or around March 2020, the complainant commenced work with a haulage company based in Northern Ireland delivering to Great Britain. He left this job on 30 June 2021 and commenced working for another transport *107 company that operates exclusively in Ireland on 4 July 2021. His earnings with this company are on a par with what he had been earning with the respondent and he, therefore, currently has no ongoing loss.
Discussion and decision
The complainant does not dispute that a genuine redundancy situation had come about in the respondent in mid-2019. His case is that he was unfairly selected for redundancy at that time in retaliation for having previously referred complaints to the WRC in relation to his working hours and rest breaks. He says that respondent’s decision was a fait accompli from the start, that no genuine engagement in relation to alternatives to redundancy took place at the meetings to which he was invited.
Having carefully considered the evidence of the respondent’s witnesses, the court finds that the respondent advanced a strong business case in support of its decision to discontinue Shift A. However, the court finds that the respondent’s engagement with the complainant over the course of two very brief meetings (at the second of which he was dismissed) was perfunctory and proforma. There was no meaningful effort made, in the court’s view, to consider options for alternative employment for the complainant. There was no evidence before the court that he was afforded an opportunity to appeal the respondent’s decision to dismiss him for redundancy.
On the basis of the foregoing, the court dismisses the appeal and upholds the AO’s finding that the complainant was unfairly dismissed in all the circumstances.
Redress
The court notes that the complainant’s evidence was that he approached only two employers in his local area to seek employment when his job with the respondent was made redundant. He did this in the days immediately following the cessation of his employment but prior to his date of dismissal for the purposes of the Act. Thereafter, he decided to retrain as an HGV driver.
This is an involved process and one to which the complainant appears to have devoted his full time and attention up until the end of December 2019 as there is no evidence of his having made any further attempts to source work until he had completed his driver training.
It follows, therefore, that either the complainant deemed himself unavailable for work during this period because of the training he was undertaking (which he denies) or he made no effort to mitigate his loss for this period.
The court has noted the statutory redundancy payment received and retained by the complainant, his evidence in relation to loss and mitigation and his evidence in relation to his earnings in the successive jobs he obtained from January 2020 to date. Having done so, the court determines that the appropriate redress is compensation in the amount of four weeks’ pay in accordance with *108 s.7(1)(c)(ii) of the Act. The complainant’s rate of pay with the respondent was €484.76. The court, therefore, awards him compensation of €1,939.04.The decision of the AO is varied accordingly.
The court so determines.