The recent determinations of the Labour Court in Parnells GAA Club, Parnells GAA Club LTd v Leigh Fogarty (Decision No’s RPD2420 & RPD2419) are noteworthy for any employer faced with a possible layoff situation. However, it should be noted that the employer chose not to attend the hearing of the Labour Court and so the Labour Court’s determination discussed below would have been on the basis of the evidence of the employee only.

Facts:

The determination sets out the background of this case as follows.

The employer’s premises closed on 12th March 2020 due to the Covid-19 Pandemic. In terms of communications around the closure the employee confirmed to the Labour Court that he was never at any time given any notice of temporary lay-off in accordance with Section 11 of the Redundancy Payments Acts 1967-2014 (the “Acts”). However, neither was he ever at any time given any notice of dismissal. Nonetheless, his employer ceased to pay him or offer him work..

An employee who is on temporary lay-off can usually (after a specified period of time) serve a notice on their employer of their intention to claim a redundancy payment. The employer can avoid having to make a redundancy payment in such a situation if they serve a counter notice within a certain time frame confirming there will be work available to the employee within a specified time period. The time periods in each case are set out in the legislation. It is not necessary to go into them for the purpose of this article.

Suffice to note the employee here confirmed to the Labour Court that he eventually served a notice of an intention to claim a redundancy payment (in the form of an RP9 form) on the employer.

The employee contended that the employer did not responded to the RP9 form in any substantive manner.

The employee subsequently brought a claim to the WRC and on appeal to the Labour Court seeking a redundancy payment.

Decision:

The Labour Court determined that in order for the employee to be regarded as laid off within the meaning of the Acts, it is a condition precedent  that he be given notice to that effect by the Respondent (in accordance with Section 11(b) of the Acts) prior to the cessation of his employment for that reason.

In the absence of such notice, the Labour Court concluded that the employee’s employment had never ceased by reason of lay-off within the meaning of the Acts on 12th March, 2020 or at any other time and that it therefore followed the serving by the employee of notice to claim a redundancy payment by reason of lay-off upon the employer can have no meaning.

Consequently, it was determined that the employee has neither been dismissed from his employment nor acquired a right to redundancy payment arising out of a layoff. Instead and very significantly, the Labour Court determined that the employee remains employed by the employer albeit that he has not been paid or provided with work in over four years.

Such a decision gives rise to complex employment law considerations from the perspective of an employer.

Takeaway for Employers:

Where an employer finds themselves in a sutation of needing to temporarily lay off a member of staff, it is important to ensure that all necessary paperwork is put in place around this including issuing the appropriate official written notice of layoff to the employee in accordance with the requirements of the Acts.

Separately, while it was not something that arose for discussion in this decision, employers should also be careful to ensure they include clauses on layoff/short time in their employees’ contracts of employment as the absence of such contractual clauses can prove problematic later if a lay off/short time situation arises.

Links  – https://www.workplacerelations.ie/en/cases/2024/august/rpd2419.html and https://www.workplacerelations.ie/en/cases/2024/august/rpd2420.html

Authors –Hannah Smullen and Laura Killelea

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