A very useful decision issued from the Labour Court under RPD181 being a case of DNT Forkan Construction Limited and Michael Diamond.

The case itself is very useful in relation to setting out the law as regards claiming redundancy.

The Court pointed out that there was no dispute between the parties as regards the facts. The employee was employed by them and was placed on temporary layoff on the 4th January 2017. Some 4 weeks later, on the 2nd February 2017, pursuant to Section 12 (1) of the Act the employee served a duly completed Form RP9 on the employer. The employer subsequently issued a counter notice dated the 7th March pursuant to Section 13 (2) of the Act. The Court pointed out that Section 13 (2) permits an employer who has received a notice from an employee of the intention to claims a redundancy payment in a layoff situation to serve on that employee a counter notice within 7 days of receipt of the original notice. In this case that counter notice to be effective should have been served by the employer on the employee no later than the 10th February. Further it was pointed out that the Respondent was unable as it transpired to provide the Complainant with 13 weeks continuous full time work commencing no later than 4 weeks from the date of the Complainant’s notice.

The Court helpfully set out the provisions of Section 11 and 13 of the Act in full.

The Court determined that the Court could not take into account issues such as the employer believing that the employee was not interested in returning to work and had declined to accept formal office of work made to him on the 6th June 2017 and on the 1st August 2017. The Court correctly pointed out that these are not matters that can be taken into account in making the decision in respect of the claim. The employee, the Court pointed out, had fulfilled the requirements specified in the Act. The employer had failed to do so. The Court pointed out in the circumstances having regards to the strict wording of Sections 11 to 13 of the Act that the Court was obliged to confirm the Adjudicator’s decision which was that the employee was entitled to redundancy.

This is an important case for reinstating the law.

It is a reminder that employers need to ensure that they serve the appropriate counter notices within the appropriate 7 days of receipt of the original notice. For employee serving such a notice it is very useful to have same served by way of Registered Post and to obtain confirmation of the delivery date. The time limit in the Redundancy Payment Legislation for the employer to give a counter notice is 7 days. It is not 7 working days. It is 7 days. Where employers receive an RP9 then in those circumstances they must make an immediate decision as to whether to serve a counter notice.

There is a further issue that if an employer does serve the counter notice within the 7 day period and does not provide 13 week continuous work within 4 weeks of them serving the counter notice then in those circumstances there is a strong argument that the employee is entitled to claim redundancy and the 13 weeks wages. This is an issue which may well have to be addressed before an Adjudication Officer or the Labour Court into the future.