ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003362
Complaints for Resolution:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00004837-001 | 25/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00004837-002 | 25/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00004837-003 | 25/05/2016 |
Date of Adjudication Hearing: 23/08/2016
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Act, 1967, Section 8(1B) of the Unfair Dismissals Act, 1977, Section 11 of the Minimum Notice & Terms of Employment Act, 1973, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
The complainant alleged that he commenced work on 01/02/1993 and worked as a barman in the pub having until it was sold as a going concern to the respondent. When the respondent took over the pub, he proceeded to have the pub renovated and the complainant said he made numerous efforts to contact the respondent regarding available work but did not receive any satisfactory reply. He subsequently served an RP9 form on him followed by Form RP77 and RP50 but still did not receive any response. He claimed that he was seeking redundancy and minimum notice and that should his claim under redundancy legislation fail, he was seeking redress for constructive dismissal as he had made numerous attempts to make contact with the new owner of the pub. Evidence was given by the former owner of the pub as a witness for the claimant, that the claimant had been employed for the specified duration of employment.
Respondent’s Submission and Presentation:
Preliminary Issue:
The respondent requested an adjournment of the case on the basis that they needed to time to read various documentation from the complainant in advance of the case proceeding.
Without prejudice to the above, the respondent’s evidence was that when he purchased the pub he had no knowledge that there were employees working there until the day after the sale of the pub (as per the terms of the sale contract). He was then provided with a sheet of paper that stated the names of two employees with their date of commencement of employment and their wages. The respondent stated that he had won the lottery and had received bags of begging letters from people since then with, subsequently, many of these letters left unopened. Notwithstanding that this may have been the reason why the solicitor’s letters from the complainant were left unanswered; the respondent denied receipt of these letters. The respondent denied also that any attempts were made to contact him by the complainant regarding his employment.
The Respondent stated through his representative that he would pay redundancy to the complainant if he was provided with evidence of the complainant’s period of service as well as evidence that the employment was insurable under the Social Welfare Acts and proof of weekly wages.
Legislation involved and requirements of legislation:
Redundancy Payments Act 1967 – 2014:
Section 7(1) provides that:
An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—
(a) he has been employed for the requisite period, and
(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.
Section 11
(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
(b) the employer gives notice to that effect to the employee prior to the cessation,
that cessation of employment shall be regarded for the purposes of this Act as lay-off.
(2) Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for any week is less than one-half of his normal weekly remuneration, he shall for the purposes of this Part be taken to be kept on short-time for that week.
Minimum Notice and Terms of Employment Acts 1973-2005:
Section 4(2)
The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
Dismissal
Section 3(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee (c) the redundancy of the employee, Decision:With regard to the preliminary issue, a request for an adjournment had been already been given due consideration by the Workplace Relations Commission on 19th August and the request for adjournment had been already refused. Having considered the matter and as I was satisfied that there were no new additional reasons being put forward to support the request for an adjournment, the request for adjournment was denied on the basis that this had already been decided. With regards to the substantive issue, section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. |
Following the hearing, the complainant wrote to the WRC on August 25th 2016 and 3rd October 2016, copying the respondent on it, providing copies of P60s for 2012-2014 and a copy of P45 for 2015 and copy of letter from Revenue with the complainant’s tax record for the years 1993-2015. No response was received from the respondent in relation to same.
As the respondent has confirmed his acceptance of his obligations upon purchase of the pub and has confirmed that he will pay the complainant’s entitlement to redundancy, subject to the complainant’s employment being insurable for all purposes under the Social Welfare Consolidation Act, 2005, my decision is as follows:
CA-00004837-001 (Redundancy Payment Act 1967-2007)
In respect of the redundancy payment claim, based on the evidence and documentation submitted by the appellant, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the appellant a redundancy lump sum based on the following;
Date of Commencement: 1st February 1993
Date of Termination: 22 April 2016
Gross Weekly Pay: €395.91
This award is subject to the appellant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Act, 2005.
CA-00004837-002 (Unfair Dismissals Act 1997-2007)
In respect of the unfair dismissal claim, I find that since a redundancy is a fair dismissal the claim under the Unfair Dismissals Acts, 1997 to 2007 must fall.
CA-00004837-003 (Minimum Notice and Terms of Employment Acts)
In respect of the minimum notice claim I award the sum of €3,167.28 being eight weeks week gross wages, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Dated: 20th October 2016