Short Time / Lay Off
Cases
C v Northstone (NI) Ltd
[2012] NIIT 00253_12IT
“Issues
1. At the outset of the hearing, the parties presented the following as the agreed issues in the case:-
(a) Do the claimants’ contracts of employment contain a term which permits the respondent to lay them off in inclement weather?
(b) Can such a term be implied into the contract by custom and practice?
(c) If the contract does not contain such a term, has the contract been varied to permit the respondent to lay off the claimants in inclement weather? The respondent accepted that there was no written consent to a variation in such terms but submitted that the claimants were notified of the respondent’s proposed variation and consented to the variation by continuing to work.
…4. The following facts were agreed:-
(a) The claimants are employed as boatmen/skippers on the respondent’s dredger barges which operate on Lough Neagh.
(b) The claimants were issued with a statement of particulars of terms of employment pursuant to the Contracts of Employment and Redundancy Payments Act NI 1965.
(c) David Br signed same in June 1994, Michael C in May 1995 and Mr T signed in January 1992, confirming his service from July 1979.
(d) Prior to the events narrated in the originating application and response, the claimants had not previously been laid off as a result of inclement weather in their employment history. Upon days when sailing was either impossible or unsafe, the claimant(s) would undertake work at the respondent’s depots as directed by the respondent and provided for in the claimant’s terms and conditions.
(e) Bonus negotiations were undertaken with the claimants’ representative and a document entitled Lough Wages Summary was applied to those in the Lough Squad. The last of such meetings occurred in September 2003.
(f) In December 2010 the claimants received a letter from G McQ, Managing Director, advising that the company will no longer be in a position to provide alternative work for those employees affected by excessively cold weather and they would be laid off. The letter invited the claimants to raise concerns with their director responsible.
(g) The claimants did not object to same nor did they raise any query.
(h) The claimants were never laid off as a result of excessively cold weather and have not been to date.
(i) In June 2011, a further letter was received from the respondent which stated that from 13 June 2011 we will no longer be in a position to provide alternative work for any employee who cannot perform his or her normal work activities due to adverse weather of any description and those affected would be laid off. The letter invited the claimants to raise concerns with their director responsible.
(j) The claimants did not object to same nor did they raise any query.
(k) The claimants were prevented from sailing due to adverse weather on 17 June 2011. No lay off was imposed as the respondent found meaningful work for them.
(l) The claimants were prevented from sailing due to adverse weather on a number of occasions from June until November 2011 and no lay off was imposed as the respondent found meaningful alternative work for them.
(m) Some 18 weeks after the letter of June 2011, at a meeting on 17 October 2011 at the conclusion of a meeting on other matters, Brian Thompson of the respondent company, advised the claimants that the company was going to enforce the proposed arrangement as set out in the correspondence of both December 2010 and June 2011.
(n) The claimants raised a grievance on 28 October 2011 stating, inter alia,
We believe that your proposal not to pay us when there is no sailing is a unilateral variation to our terms and conditions which we do not accept. Further any deduction from wages as a result of any such decision may amount to an unlawful deduction from wages and/or breach of contract.
(o) The claimants were sent home on 2 November and 28 November as a result of inclement weather.
……
8. The claimants had been temporarily laid off for two months in or around January/February 2009. The downturn in the economy was the reason for that
lay-off. The respondent was producing more sand than it could sell, its stock was full and there was no more room to store the sand. Mr C said that he and his colleagues had accepted the lay-off because work wasn’t plentiful for the company and they could see that the respondent had more stock than was needed at that time. He said that they had been given notice of that lay-off and they could plan and budget for it. Mr C said that he was not aware of the concept of a lay-off prior to January 2009.
9. Mr C told the tribunal that no objection was raised to the contents of the letters dated December 2010 and June 2011 referred to at paragraph 4 above because he and his colleagues regarded them as general letters which were not directed at them specifically. As soon as they realised at the meeting on 17 October 2011 that the letters did apply to them, they took steps to raise a grievance. Mr C said that from December 2010 until 17 October 2011 he and his colleagues did not object to weather lay-offs because, “there was nothing to object to, we were paid as normal”.
Law
10. Express terms of the contract are those that the parties specifically deal with and agree upon. They may be contained in a document.
11. In respect of the implication of a term into a contract by way of custom and practice, the respondent’s counsel relies on paragraph 35 of Harvey on Industrial Relations and Employment Law which includes the following:-
“…where the custom and practice is confined to a particular establishment, the custom must be proved, but if it is proved, it apparently does not matter that the individual concerned was unaware of the custom. If ‘everybody knows’ then he ought to know too; and it is his own fault if he does not. The other party will reasonably have assumed that he does know, and therefore he is bound by the custom. It follows however that the court will not lightly find a custom. The custom asserted must be (in the traditional phrase) ‘reasonable, notorious and certain’: reasonable, in the sense of fair (Devonald v Rosser & Sons [1906] 2 KB 728); notorious, in the sense of well known—perhaps not universal, but at least the general rule rather than the exception (Ropner & Co v Stoate Hosegood & Co (1905) 92 LT 328); certain, in the sense of precise: Devonald v Rosser.”
12. Insofar as variation of the terms of the contract is concerned, the respondent relies on paragraph 84 of Harvey on Industrial Relations and Employment Law which contains the following:-
“what is needed in contract law for a valid variation is consent/assent somehow; there is no requirement that it be joyful consent /assent and of course UK contract law tends to have little regard for idea of ‘good faith’ negotiations. Indeed, references to ‘assent’ may not just be semantic because employment law has long accepted the idea of assent by acquiescence, ie by lack of objection on the part of the workforce, evidenced by continuing to work on the new terms and conditions; the fact that this may in reality have been because the employees need the work and are ‘accepting’ unhappily is legally irrelevant. It is a tough old world out there”.
13. The claimants’ rely on paragraph 22 of the decision of the Employment Appeal Tribunal in Jones v Associated Tunnelling Co Ltd [1981] IRLR 477. There the President commented:-
“If the variation relates to a matter which has immediate practical application (eg, the rate of pay) and the employee continues to work without objection after effect has been given to the variation (eg, his pay packet has been reduced) then obviously he may well be taken to have impliedly agreed. But where, as in the present case, the variation has no immediate practical effect the position is not the same…it is asking too much of the ordinary employee to require him either to object to an erroneous statement of his terms of employment having no immediate practical impact on him or be taken to have assented to the variation. So to hold would involve an unrealistic view of the inclination and ability of the ordinary employee to read and fully understand such statements.”
Conclusion
14. Express term
The tribunal is unable to find that there was an express term in the claimants’ contracts of employment on the basis of either the 1999 Farrans Limited statement of particulars or the 2005 Northstone (NI) Ltd statement of particulars. The claimants deny ever having seen the documents prior to this litigation and the respondent has not produced evidence which would enable the tribunal to conclude on the balance of probabilities that the documents had been seen by the claimants.
15. Implied term
The evidence falls far short from that which would be required to persuade the tribunal that a term in respect of lay-offs was implied by custom and practice. The previous two month lay-off in 2009 fell into an entirely different category. Prior notice was given of that lay-off which was caused by general trading conditions rather than poor weather on a given day.
16. On all previous occasions when weather conditions impeded operations, meaningful alternative work was found for the claimants. This was the established custom and practice.
17. Variation
The tribunal is not satisfied that there was an effective variation of the terms of the contract.
Despite the terms of the letters written in December 2010 and June 2011, the respondent did not act on the purported variation of the terms on any one of the number of occasions between December 2010 and October 2011 when adverse weather prevented sailing.
Prior to 2 November 2011, meaningful alternative work was found for the claimants on such occasions. By the time that the respondent sought to act on the purported variation, the claimants had already made clear their objections by raising their grievance on 28 October 2011.
The grievance was raised as soon as it became clear to the claimants that the respondent intended to act on the purported variation of the contract. At no time did the claimants acquiesce in any actual reliance by the respondent on the purported variation.
18. In the circumstances the tribunal finds that the respondent did make unlawful deductions from the claimants wages. Consequently the tribunal makes awards in favour of the claimants in the sums agreed between the parties”.
Darcy –v- McLoughlin Painting Contractors Limited
MN 94/2007
“
Determination
The Tribunal has carefully considered the evidence adduced. The claimant and his
colleagues were laid off in and around August 2006. The Tribunal does not doubt
that a genuine lay-off situation existed. Up to twenty-two employees were laid off as
work contracts unexpectedly dried up over a period from August 2006.
The Tribunal would be critical of the respondent company’s failure to keep it’s laid
off employees notified about what was going on and what their realistic prospects
were. The legislation clearly states that an employee who has been laid off is entitled
to look for voluntary redundancy after four weeks. This option was not made known
to the claimant and his colleagues and, instead, the situation was allowed to drag on
for three months – made all the more frustrating because there was no direct line of
communication between the employer and employee.
Ultimately, and in response to union pressure, a meeting was called at the end of
November 2006. At this meeting it was made clear that lay-offs would continue into
the future as the company was trying to chase contracts.
Of the twenty-two employees, eighteen chose to take voluntary redundancy, which
was the alternative open to them. The obvious disadvantage to an employee who
chooses to take voluntary redundancy in a situation of lay-off is that that employee
disentitles himself to work out a notice period or get paid in lieu. This posed a
significant loss to the claimant, who had worked with the company for 14 years.
What the Tribunal has to ask itself is whether this lay-off was a genuine one and not
some ploy on the part of the employer to avoid paying substantial notice entitlements
where, in fact, a genuine redundancy existed.
The Tribunal is satisfied, on the uncontradicted evidence, that the company was
going through difficult times and had lost good contracts and was desperately trying
to compete for others. It is fair to assume that the company could not know if, or
when, work would become available again. In taking this view the Tribunal is
mindful of the four employees who held out for another two months and returned to
the workplace when things looked up.
In calculating redundancy, the company did not include the period of lay-off. This is
provided for under the Acts and no advantage or disadvantage arises in consequence
of this.
The Tribunal has every sympathy for the applicant herein, but finds that he has been
paid his full entitlement in the circumstances presented.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2001
fails.
Craig v Bob Lindfield & Son Ltd
[2015] UKEAT 0220_15_2011
UKEAT
3. Eligibility for a redundancy payment by reason of being laid off or being kept on short-time (under section 135(1)(b)) is dealt with under Chapter III of Part XI in sections that are of particular importance to this appeal and to which we shall come.
4. Dismissal for redundancy, if that option is chosen, may serve neither the interests of an employer nor those of its employees. The employer will lose staff it relies on to do work, who are experienced in doing it, and who may have specialist skills. It may particularly wish to retain such employees if the work is specialist, both because it will need to have such employees available for work when, as it hopes, the work picks up again, and because it would be put to some expense to lose them, since it would have to pay the amount of any redundancy payment to which they would be entitled if dismissed. The employees on their part will lose jobs they may value, together with the continuity of employment that brings with it a number of important statutory rights, and be thrown upon the uncertainties of the labour market at a time when the more particular their skills are and the more particular the niche that his employer has in the marketplace the more likely it is that the downturn in work will have affected similar employment with similar employers, thus making an alternative job for the employee all the more difficult to secure. At least where it is anticipated that the downturn in work will not last for long, it may therefore be in the interests of both employer and employee that provisions as to lay off and short-term working should be effective, and should not generally be regarded as a breach of contract, let alone as repudiatory, not least since they are provided for by express contractual terms.
…
6. In A Dakri & Co Ltd v Tiffen [1981] ICR 256 the EAT thought that a contractual term that a period of lay off should not extend beyond that which was reasonable was to be implied. In the submission of Mr Watson, who appears for the appellate Claimant before us, this was as an incident general to most contracts of employment which provide for lay off and short-term working.
7. A different view as to the nature of this term (if it existed at all) was expressed in the later case of Kenneth MacRae & Co Ltd v Dawson [1984] IRLR 5. Whereas the former was a decision of the Appeal Tribunal sitting in England, Judgment in which was expressed by Mr Gough, one of the lay members of that Tribunal, the latter was a decision of the Appeal Tribunal sitting in Scotland, the decision being given in a Judgment of Lord McDonald. The fact they arose on different sides of the border is irrelevant: being decisions of this Tribunal, they are of equal standing. In general, however, this Tribunal would wish to follow a previous decision in the same general area as a matter of comity. Where there are two decisions, the later of which has expressly considered and departed to some extent from the earlier decision, the convention is that this Tribunal will normally follow the later decision unless persuaded that it was in error. Mr Watson does not dispute those propositions.
8. The question before us is whether, in the circumstances of this case, the Judge was entitled to reject the claim by the Claimant that he had been constructively unfairly dismissed by the employer in circumstances in which there had been a genuine drop-off in work that had led to his employer operating a clause in his contract permitting there to be a lay off for an indefinite period, where the lay-off led to an absence of pay for just over four weeks. The effect of his claim if successful would be that he would be entitled not only to an amount equivalent to a redundancy payment as a basic award for unfair dismissal, but would also be entitled to a payment of what would otherwise have been his wages during the period of notice and, it may be, further and consequential damages as appropriate to a claim of unfair dismissal. He would not therefore be restricted to the amount of a redundancy payment; he would, he claims, be entitled to receive rather more.
Discussion
35. We do not accept that there is real scope here for a contractual provision to be implied as to the length of time for which it is reasonable for there to be lay off and short-term working. We acknowledge that there is ample scope for the operation of contract and for the law relating to repudiatory breach if, in handling a process of laying off staff or introducing short-term working, an employer is in breach of other contractual obligations to his employees. We regard it as essential that in general any lay off effected under a contractual power must be what one might describe as a genuine lay off. The lay members are clear that there are occasions in today’s world where there is a strong incentive for an employer to replace a qualified, experienced and loyal workforce with workers who will work for less but who may be equally qualified, as for instance by the employer taking advantage of posted workers, who are paid in a country of work where wages are generally high that which they would have been receiving for such work in their country of origin where wages are generally lower. However, this is not such a case. Nor is it one of those cases in which there is any suggestion that the employer has manipulated the lay off or short-term provisions for its own economic benefit, at the expense of its employees. If it had done so, this would have been a very different case. Nonetheless, we wish to make it clear at the outset that what we have to say does not altogether prevent employees making good a claim for constructive dismissal arising in relation to a lay-off. All must depend upon the particular circumstances.
36. We have concluded as we do for these reasons. Where there is a real prospect of there being fresh work for the employer and its employees, it is likely to be in the interests of neither for there to be wholesale redundancies and likely that it is in the interests of both that there should be lay off or short-time working. It is not difficult to see why lay offs and short-time may cut against the essential elements of the wage/work bargain, but it does not wholly defeat the principal object of the contract agreed between the parties for it also to be agreed that if the enterprise in which both have a stake and provides both with a livelihood falls on hard times there should for a period be neither work nor pay. The question whether there comes a time when the lay off or short-time working has gone on for so long that the employer should choose redundancy and lose his employees, or free them, as they may see it, so they may seek fresh employment elsewhere, is one to which Parliament, as it seems to us, has given some answer in what is now Chapter III of Part XI of ERA. The scheme of the Act may be prescriptive, but it begins with a choice. The choice is for the employer: either to pay a redundancy payment, or to lay off employees or keep them on short-time working. As we say, that must be with a realistic expectation that there may be some further work and not solely to evade his responsibilities to pay.
37. If, however, he chooses the latter, as happened in this case, in circumstances where, as in this case, he was contractually entitled to, it seems to us that Parliament has set out the appropriate balance between the rights of the employees and the interests of their employer. Plainly, a drop-off in work results in a reduction in the needs of the business concerned for work to be done of a particular kind or in a particular place. This meets the statutory definition of redundancy. If employees are dismissed for redundancy in these circumstances, their dismissal will almost inevitably be fair, subject only to procedural questions and appropriate selection for dismissal. A person in the position of the Claimant would thus receive a redundancy payment if dismissed. Unless dismissed, however, he would not automatically have any such entitlement: his only hope would be of resigning and persuading a Tribunal that he did so in circumstances amounting to a constructive dismissal. Unless regulated by statute, this could create uncertainty for both employee and employer: the first, risking that he might not be entitled to such a payment; the second that he might be ordered to pay one, with both having the expense of claiming or, as the case may be, resisting such a payment. It is in such circumstances that the effect of the provisions under Chapter III is to postpone any entitlement to such a redundancy payment for at least four weeks, but to recognise that the employee should increasingly be put in control as to when after that the entitlement should accrue. Thus after four weeks the employee may enter a notice claiming a redundancy payment and seek to be paid. For the four weeks next after a notice there is a different balance to be struck: the employer may be able to resist a claim for payment, but only where the prospects at the time of the notice were not only of an upturn in work but an upturn to such an extent that a reasonable period of full-time working was probable thereafter; but time is running out for him, given the provisions of section 152(2). The statute provides for greater certainty for both.
38. In general terms, this scheme leaves it to an employee to decide whether he still has sufficient interest in working for his employer’s business as not to serve the notice which he is entitled to serve. However, being a matter of statute, the provisions apply whatever the contract provides as to the permissible duration of lay off and short-time working may be. If for instance the contract provided for three months as a maximum period of lay off, nonetheless the employee would have his rights under the Act to issue a notice seeking a redundancy payment after four weeks.
39. It seems to us therefore that Parliament has stepped in, to determine the rights of both parties in these difficult economic circumstances, as indeed was recognised by Lord McDonald in the Dawson case. We find the decision in Tiffen surprising. It is surprising because the Claimant was held entitled to a redundancy payment though she had not gone through the steps that Parliament had decreed a person had to go through in order to claim just such a payment and, by imposing that requirement for a Claimant to go through that process, suggesting that there was no other route. What is a reasonable time for lay-off to persist is thus in part provided for by Parliament: by provisions arguably favouring the employer during the initial four weeks, but for periods beyond that in essence leaving matters up to the employee. Before us Mr Watson had, as we see it, no really effective answer to the conundrum posed by this case: if the Claimant was entitled to make a claim for constructive dismissal after four and a half weeks, irrespective of having put in a claim under Chapter III of Part XI of the ERA, he would be entitled to a sum of money potentially above and beyond that which would have been in contemplation as a redundancy payment. This would tend to negate the purpose of the statutory provisions.
40. We do not see there being any imbalance in particular between the positions of employer and employee, both of which are difficult at times when business declines, which would require an Employment Tribunal to have to pass judgment upon whether a particular length of time on lay-off or short-time working in particular circumstances is or is not reasonable: all the more so, when the contract provided for an indefinite period.
41. Accordingly, bearing in mind that which Dyson LJ said in paragraph 36 of Crossley and that which he quoted from at paragraph 33 from Anson’s Law of Contract (see above), we take into account as highly relevant how the proposed term sits with existing law (i.e. with the statute) would affect the parties to the relationship (whose respective positions we have described) and wider issues of fairness (which, as we have indicated, we hold that Parliament has considered when setting out a timetable and procedural template). All these considerations support the view expressed in Dawson, which we have echoed above.
42. Accordingly, we do not consider that this is a case in which the view of the Tribunal as to whether the period of time laid off was objectively reasonable is relevant. In so holding, we accept and endorse the views expressed by Lord McDonald in the penultimate paragraph of Dawson, though we should, as we indicated, follow Dawson in the interest of comity in any event; far from being satisfied that it is in error, we have concluded that it is correct and that in so far as it expresses an overall test of reasonableness the decision in Tiffen is in error and is not to be followed.
…….
Conclusion
46. It follows that, despite the erudition of Mr Watson’s argument, we have concluded that this appeal should be, and is, dismissed. We would add only this. We have throughout attempted to indicate our view that this case, like so many others in its field, is dependent upon its particular facts. We do not exclude that there may be facts that show that an employer has so behaved in and around the difficulties of a lack of orders or throughput of work, or for that matter for reasons purely of maximising his profit, in a way that falls foul of the obligation not without reasonable or probable cause to act in a manner calculated or likely to damage or seriously destroy the relationship of trust and confidence between them. If there is such a contention in any case, it will have to be considered on its facts. We can easily see situations in which there might, notwithstanding there being a period of lay off and short-term working, also be, at the same time, a viable claim for dismissal, albeit constructive. However, such a claim did not arise on the facts we have had to consider on the present appeal, which is dismissed.
Irish Leathers Ltd. v. Minister for Labour
[1986] I.R. 180
H.C. Barrington J.
“This is an appeal on a point of law from a decision of the Employment Appeals Tribunal given on the 23rd August, 1984. The facts of the case are as follows. The plaintiff is a publicly quoted company, based in Waterford and engaged in the tanning trade. In the years prior to 1983, the plaintiff company suffered heavy trading losses. As a result of these losses it planned to close down a tannery operated by a wholly owned subsidiary of the plaintiff company as and from the 16th September, 1983. Following negotiations with the workers’ trade unions it was agreed to keep the tannery open but with a reduced workforce. The balance of the workforce was to be temporarily laid off and was to be given the opportunity of accepting redundancy if not re-employed within a certain time.
This compromise was accepted by the workers and the factory continued in production. Unfortunately, however, the company was not able to re-employ as many workers as it had hoped and such workers as had not been called back by the end of March, 1984, were declared redundant and the full redundancy pay plus 1.2 times the statutory redundancy was paid to these workers in April and May, 1984.
The second defendant was one of the workers who was temporarily laid off in September, 1983. He was not called back to work and on the 6th April, 1984, he received notice of redundancy to expire at the end of six weeks, namely on the 18th May, 1984. His employment was brought to an end in accordance with this notice and by reason of redundancy, on the 18th May, 1984.
The second defendant maintained that although he was on lay-off he should have received six weeks pay in lieu of notice. It was the contention of the company that because he was on lay-off he was not in a position to suffer loss and furthermore, that during the period of his lay-off he was in receipt of social welfare benefits and accordingly did not suffer loss, or suffered reduced loss having regard to the provisions of s. 12 of the Minimum Notice and Terms of Employment Act, 1973.
This case turns in part upon the fact that the second defendant was “on lay-off” at the time when notice of dismissal was served upon him. Because the employee was “on lay-off” the employer submits that he would not have been earning in any event and therefore no loss was occasioned to him by reason of the fact that he was not paid during his period of notice. There is no definition of lay-off in the Act of 1973. But it appears to me that the Minimum Notice and Terms of Employment Act, 1973, is in pari materiawith the Redundancy Payments Act, 1967. Indeed s. 1 of the Act of 1973 refers to “the Act of 1967” as meaning the Redundancy Payments Act, 1967. The same section of the same Act refers to “the Tribunal” as meaning the tribunal established under the Act of 1967. That tribunal, which was established by s. 39 of the Redundancy Payments Act, 1967, was formerly known as the “Redundancy Appeals Tribunal” and is now renamedby virtue of the provisions of s. 18 of the Unfair Dismissals Act, 1977,the”Employment Appeals Tribunal”.
The Redundancy Payments Act, 1967, contains, at s. 11, a definition of lay-off. The definition is as follows:
“(1). Where after the commencement of this Act 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.”
It seems clear from this definition that for a lay-off to exist that the employer must believe “that the cessation of employment will not be permanent.” This was undoubtedly the position when the second defendant in the present case was laid-off initially. But a time came when the employer had to accept that there was no hope of re-employing the second defendant and that it was necessary to dismiss him. Once notice of dismissal was served it appears to me that the employee was no longer “laid-off” but was an employee under notice of dismissal. Put another way, the contract of employment, the operation of which had been suspended, had been reinstated for the purpose of terminating it. Once this happened it appears to me that the rights of the parties were governed by the provisions of the Minimum Notice and Terms of Employment Act, 1973.
Among the rights which the employee had under these circumstances was the right given to him by s. 2 of the second schedule to the Act to be paid by his employer in respect of any time during his normal working hours when he was ready and willing to work but no work was provided for him by his employer. That was the position so far as the second defendant was concerned. He was ready and willing to work. There is no question of his being in other employment or of his being prevented from working by illness.
Under these circumstances it appears to me that the second defendant had a statutory right to be paid the sum indicated in the second schedule to the Act of 1973 and that his “loss” under s. 12 of the Act is the amount of money which he was entitled by statute to receive and which he did not receive.”
McD v JM
(RP/125/2008)
EAT
Appellant’s case:
The appellant worked for the respondent for approximately two and a half years. On the week
before the summer holidays in 2007 he and his colleagues were told by the foreman that work was getting slack and they could look for other work. After the holidays they were asked if they had looked for the work. The managing director (MD) told them they were put on protective notice.
On or about the 16th August 2007 when the MD was asked if he could guarantee thirteen weeks work he stated that he could guarantee one week. The appellant and his colleagues kept enquiring about the work situation and the last time they made contact was in January 2008. They got other work with the Waterford Institute of Technology (WIT) the Monday after finishing with the respondent.
Determination:
On the evidence of both the appellant and the respondent, the respondent was unable to furnish a guarantee of continuity of work to the same extent as the work available to the appellant with another employer. Based on this the appellant left the respondent’s employment and commenced with another employer the following Monday. The Tribunal therefore finds there was no dismissal on the basis of redundancy and the appeal under the Redundancy Payments Acts, 1967 to 2003 is dismissed.
R v OC Electric Ltd
(RP/366/2008)
EAT
Claimant’s case:
The appellant worked for the respondent for ten years and one hundred and eleven days. On
15February 2008, he received one week’s notice of the termination of his employment and
His employment ended on 22 February 2008.
During the week of 20 November 2008, a cheque was received in the office of his union in relation to the appellant’s redundancy. The redundancy payment was capped at the statutory amount of €600.00 per week. The appellant confirmed that he received this redundancy cheque. However, he was entitled to six week’s notice of the termination of his employment but only received one weeks notice. The short fall in the cheque equated to five week’s notice.
An application was made to the Tribunal to amend these proceedings to include a claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2001.
In cross-examination, the appellant said that on receipt of the one week’s notice of the termination of his employment, he had understood from the respondent that there was no possibility of future work and that the lay off was going to be long term. The respondent had no work at that time. The appellant had contacted the respondent to enquire about forthcoming work and because he had been given no hope of same, he had sent his RP77 form to them. The appellant confirmed that he had received his redundancy payment.
The appellant explained that his presence before the Tribunal was because of his
Determination:
The uncontested evidence adduced to the Tribunal established that the respondent gave notice of lay-off to the appellant on the 15 February 2008 (albeit it is disputed by the appellant that this was stated to be a temporary lay-off) and on the 27 March 2008, an RP77 form was sent by the appellant to the respondent to which there was no reply. Furthermore, on the 29 April 2008, the appellant lodged an appeal under the Redundancy Payments Act 1967 to 2003 to the Employment Appeals Tribunal.
On the 20 November 2008, a cheque for redundancy was sent to the appellant’s union (the appellant confirmed receipt of same), which sum was capped at the statutory amount of €600.00 per week.
The Tribunal finds the lay-off of the appellant, as well as a number of other employees, was genuine and in accepting the redundancy cheque, the appellant disentitled himself to either work out a notice period or be paid in lieu. Accordingly, the Tribunal determines the appellant’s application to amend the proceedings to include a claim under the Minimum Notice and Terms of Employment Act 1973 to 2001 is refused and his appeal under the Redundancy Payments Act 1967 to 2003 is dismissed as he has been paid his full entitlement to same. “
An Post v. McNeill [1997] IEHC 161
O’Sullivan J.
……..
12. Before stating my conclusions I would observe that there is nothing in the statutory provisions to which I have referred which establishes that a period of lay-off may not exceed twenty-six weeks. In the context of the minimum notice legislation, a shorter period shall count as a period of service and in the context of the redundancy payments legislation continuity of employment shall not be broken by a lay-off of a shorter period. There is nothing to say that a lay-off cannot exceed this period. Indeed the specific provisions to which I have referred suggests that such can be the case. That being so, it is within the jurisdiction of the Tribunal to find that a period of interruption of work in excess of twenty-six weeks is a period of lay-off. If they find this as a fact under the principles to which I have referred, this Court will not disturb such a finding.