Defence to Redundancy Claim

Scenario – Say business is slow and an employer decides to temporarily lay-off staff.

This is not an ideal situation for the employee as he/she needs an income and evidently business is not going well, or this would not be required. An employer tells the employee to stick with it and they will come good and he/she will be required again in the near future.

Employee Right to Redundancy During Lay-Off

This stems from Section 12 of the Redundancy Payments Act 1967 which states:

(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless

a ) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

b ) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph ( a ) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

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

Therefore, the employee can during the lay-off period apply and seek a Redundancy lump sum payment depending on some conditions mentioned above being met.  

The RP9 Application Form can be found here: https://www.workplacerelations.ie/en/publications_forms/lay_off_and_short_term_procedures_form_rp9_.pdf

Now, say the employee seeks the Redundancy Lump Sum from the employer, and the employer is of the view the employee is not entitled to a redundancy payment and a case gets referred to the Workplace Relations Commission.

Employer’s Defence

Right of the Employer to give Counter-Notice

S.13 of the Act Redundancy Payment Act 1967 states:

An employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

It is evidently essential for an employer to furnish notice in writing that he/she will contest any liability within the 7 day period requirement. This often does not happen though, as many employers seem to be aware of this legal rule, and this then becomes a problem for them, when an employee claims an entitlement to a Redundancy payment, and the employer wishes to defend it.

An employee may be disentitled to redundancy if the employer successfully argues that S.15 of the Redundancy Payments Act 1967 has been satisfied, which states:

 (1) An employee shall not be entitled to a redundancy payment if 

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) 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 termination of his contract ,

(c) the renewal or re-engagement would take effect on or before the date of  the termination of his contract, and

( d) he has unreasonably refused the offer.

Disclaimer to this Defence to Redundancy Claim Article

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be obtained from a solicitor prior to relying on anything in this article.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

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