Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on redundancy payment claims in the Workplace Relations Commission (WRC).
From reading some of the decisions in relation to this issue from the WRC we believe it is important to clarify certain issues where there may be some misunderstanding by those bringing claims as to what the rights and obligations are.
Normally the time limit for bringing a claim to the WRC is six months. In the case of redundancy by virtue of Section 24 of the Redundancy Payment Act 1967 the time limit is 52 weeks from the date of redundancy which can be extended to 104 weeks.
An employee cannot seek redundancy unless the employee has made a claim for the payment by a notice in writing given to the employer. There is a form. It is not a statutory form. There is no necessity to use that form but it is the most useful method. The provisions of Section 24(1)(B) is often not recognised by employees. We have not seen any decisions recently, from the WRC where this issue has been specifically raised except in one case. In that case however the AO found that a notice in a form similar to the one which had been issued by the Department previously had been furnished.
In relation to the issue of the entitlement to redundancy the test is whether the employee was in “insurable” employment. It is irrelevant whether appropriate social welfare returns were actually made by the employer. The issue is whether the employer had an obligation to do so. From some recent decisions of the WRC some refer correctly to the fact that it is subject to the employee being in “insurable” employment. Others use other words which would tend to indicate a requirement that the social welfare contributions had been paid. That is incorrect there is no requirement that the social welfare contributions be paid.
Unfortunately redundancy is one of those complex pieces of legislation which is sometimes not fully understood.
The reason for setting out this short note in relation to same is to alert colleagues to this particular problem.
It is an interesting fact currently that while we are seeing a substantial increase in employment, on the basis of the figures of those on the live register, we are seeing in our practice and in the decisions of the WRC a significant increase in the volume of redundancy claims. These generally speaking fall into three categories
There are the claims that go before the WRC where the employer has either failed to pay, does not have the money to pay or is contesting the redundancy. The second level of redundancies which we see and do not go before the WRC generally other than under the Industrial Relations Acts relating to voluntary severance schemes is employers restructuring and paying an enhanced redundancy over the statutory redundancy. The third ground are what we call disguised dismissals. These are cases were effectively the employer seeks to pay off the employee by purporting to structure something as a redundancy when really it is getting rid of an employee that an employer no longer wants. They are not generally speaking legitimate redundancy situations. They are more akin to dismissals but where the package put to the employer is such that the employee is disinclined other than to accept that package and accept the redundancy.
- Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.