1. Introduction
Section 39 of the Redundancy Payments Act 1967 provides for the resolution of disputes about the right to a redundancy payment by reference to the WRC. The provision is the principal route for the determination of redundancy payment claims and is supplemented by the procedural framework of the Workplace Relations Act 2015.
This article addresses the operation of Section 39, the relationship with parallel statutory routes, and the practical conduct of redundancy payment claims.
2. Legislation and Case Law
Section 7(2) of the Redundancy Payments Act 1967 defines redundancy. The provision identifies five circumstances in which a dismissal is by reason of redundancy: where the employer has ceased or intends to cease to carry on the business; where the employer’s requirements for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish; where the employer has decided to carry on the business with fewer employees; where the employer has decided that the work shall henceforth be done in a different manner for which the employee is not sufficiently qualified or trained; or where the employer has decided that the work shall henceforth be done by a person who is also capable of doing other work for which the employee is not qualified or trained.
Section 39 of the 1967 Act provides that, where any question arises as to whether an employee is entitled to a redundancy payment, or as to the amount of any redundancy payment, the question may be referred to the WRC.
The Section 39 route is the principal forum for redundancy payment disputes. The WRC will examine the qualifying conditions, the existence of a genuine redundancy situation, the proper calculation of the payment, and any defences raised by the employer.
The interaction with the Unfair Dismissals Acts 1977 to 2015 is important. A dismissal that fails the redundancy test under Section 7(2) of the 1967 Act is not, on that account alone, an unfair dismissal; the unfair dismissal complaint must be brought separately and is subject to its own qualifying conditions and time limits.
Section 39 complaints are subject to the 52-week time limit under Section 24 of the 1967 Act, extendable for reasonable cause to up to 104 weeks. The time limit differs from the six-month limit under Section 41 of the 2015 Act applicable to other employment complaints.
3. Decision
WRC decisions under Section 39 typically address one or more of the following questions: was there a genuine redundancy situation; was the employee continuously employed for the qualifying period; was the employee dismissed by reason of redundancy; was the employee entitled to be paid a redundancy payment; and was any payment made.
Where the employer accepts that a redundancy payment is due but disputes the amount, the analysis is confined to the calculation. Practitioners should be prepared to address continuous service, weekly pay, and the application of the cap.
Where the employer contests the entitlement — typically by arguing that no genuine redundancy situation existed, or that an offer of suitable alternative employment was unreasonably refused — the analysis is more substantial. Each contested element should be addressed with documentary evidence and witness statements.
The procedural conduct of Section 39 complaints is governed by the Workplace Relations Act 2015. The hearing is, in general, open to the public, and the parties are entitled to representation.
4. Takeaway
For employees, the Section 39 route is the principal forum for redundancy payment disputes. Practitioners should be alert to the 52-week time limit and should lodge complaints well within the period.
Documentation supporting the entitlement should be assembled. Continuous service records, employment contracts, pay records, and any redundancy communications should all be available at the hearing.
For employers, Section 39 complaints should be approached with care. A genuine and properly conducted redundancy is generally defensible; a sham redundancy or a procedural failure is likely to result in the complaint succeeding.
Practitioners should consider parallel complaints. A redundancy payment claim under Section 39 may run alongside an unfair dismissal complaint under the 1977 Act, a payment of wages complaint under the 1991 Act, or other complaints arising from the same underlying dismissal.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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