D & T Forkan Construction Ltd v Michael Diamond (Represented by Nathaniel Lacy & Partners Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 02 February 2018
• Judgment citation (vLex): [2018] 2 JIEC 0201
• Docket Number: ADJ-00007846 CA-00010481,FULL RECOMMENDATION,DETERMINATION NO.RPD181
• Court: Labour Court (Ireland)
• Date: 02 February 2018

Labour Court (Ireland)

FULL RECOMMENDATION

RPA/17/32

DETERMINATION NO.RPD181

ADJ-00007846 CA-00010481

PARTIES:

D & T Forkan Construction Ltd

and

Michael Diamond (Represented by Nathaniel Lacy & Partners Solicitors)

DIVISION:

Chairman: Mr Haugh

Employer Member: Mr Murphy

Worker Member: Ms Tanham

REDUNDANCY PAYMENTS ACTS, 1967 TO 2014

SUBJECT:

1 1. Appeal of Adjudication Officer's Decision No ADJ-00007846.

BACKGROUND:

2 2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Redundancy Payments Act 1967. A Labour Court hearing took place on 17th January, 2018. The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

3 This is an appeal on behalf of D & T Forkan Construction Limited (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00007846, dated 18 October 2017) under the Redundancy Payments Act 1967 (‘the Act’). The Adjudication Officer had upheld the Complainant's entitlement to a redundancy payment. The Court heard the appeal in Dublin on 17 January 2018.

4 There is no dispute between the parties regarding the material facts. Michael Diamond (‘the Complainant’) was employed by the Respondent as a foreman carpenter. He was placed on temporary lay-off on 4 January 2017. Some four weeks later (i.e. on 2 February 2017), and pursuant to section 12(1) of the Act, the Complainant served a duly completed Form RP9 on his employer thereby indicating his intention to claim a redundancy payment. The Respondent subsequently purported to issue the Complaint with a counter-notice, dated 7 March 2017, pursuant to section 13(2) of the Act. Section 13(2) permits an employer who has received a notice from an employee of his intention to claim a redundancy payment in a lay-off situation to serve on that employee a counter-notice within seven days of receipt of the original notice. In this case, that counter-notice — to be effective — should, therefore, have been served by the Respondent on the Complainant no later than 10 February 2017. Furthermore, the Respondent was unable, as it transpired, to provide the Complainant with thirteen weeks' continuous full-time work commencing no later than four weeks from the date of the Complainant's notice.

The Law

5 The relevant statutory provisions are found in sections 11 to 13 of the Act. They provide:

11. Lay-off and short-time

(1) Where an employee's employment ceases by reason of his employer's being...