ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006519 

Complaint(s):

Date of Adjudication Hearing: 08/05/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 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 complaints.

Background:

The Complainant was employed as manager in coffee shop from 23^rd March 2011 to 28^th November 2016. Her gross pay was €484 for a 44-hour week.  

The Complainant has alleged that her job was ceased without protection of her terms and conditions of employment which was contrary to Regulation 6 of the European Communities (Protection of Employment) Regulations 2000. The Complainant also alleged that she did not receive a Redundancy payment; or her correct holiday pay contrary to Section of the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

CA-00008804-001: Complaint seeking adjudication under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

The Complainant maintained that on the 28^th November 2016 the electricity company came into her workplace and cut off the electricity. She rang the Respondent and she was told to close the shop.

The following day the Complainant rang the Respondent where she was advised there was no work for her and that she was being made redundant. The Complainant submitted that she asked the Respondent to complete a RP50 and other documents and where she followed up this request by email. However, after three weeks had passed the Respondent had not completed the paperwork and has subsequently ignored any further contact from the Complainant where she did not receive her redundancy payment.

CA-00008804-002: Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant maintained that on the 29^th November 2016 she was advised by the Respondent that she was being made redundant. She asked the Respondent to complete documents regarding her four week’s annual leave entitlement, and she subsequently asked for this by email. However, after three weeks had passed the Respondent had not completed the paperwork and has subsequently ignored any further contact from the Complainant where she has not received her annual leave entitlements.

Summary of Respondent’s Case:

The respondent did not attend the hearing but was represented on a personal basis by another party that attended the hearing.

CA-00008804-001: Response to Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

The Respondent maintained that the business ceased trading in March 2016 and where it argued the Complainant agreed to take over the business. From that point onwards the Respondent contented they had no responsibility for the business and that discussions had taken place with the Complainant to transfer the business. The Complainant’s last pay slip was in April 2016 and where the Respondent argued that the Complainant ran the business from that point. On that basis, the Respondent submitted there was no redundancy payments due, the business had been transferred where all bills had been paid by the Complainant from that point, and therefore there was no jurisdiction for the case to be heard.

CA-00008804-002: Response to Complaint under section 27 of the Organisation of Working Time Act, 1997

The Respondent submitted that from April 2016 the Complainant was running the business, that it had been transferred to the Complainant, and therefore there was no obligation under the Organisation of Working Time Act for the Respondent to provide the Complainant with annual leave entitlements.  

Findings and Conclusions:

CA-00008804-001: Finding in relation to Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

This complaint refers to a redundancy payment under the Redundancy Payments Act, and not regulation 6 of the European Communities (Protection of Employment) Regulations 2000. The nature of the complaint is clear from the Complainant’s complaint form- that she sought a RP50 from her employer so she could receive a redundancy payment, but the Respondent failed to meet its obligations to provide her with a redundancy payment.

There is a conflict of evidence between the parties regarding the ownership of the business from April 2016. On the one hand the Complainant submitted that the Respondent remained the owner of the business where she managed it from April 2016 to November 2016 at which time she was instructed to close the business after the electricity was cut off. On the other hand, the Respondent argued that the Complainant took ownership of the business in April 2016.

During cross examination of the evidence presented, the Complainant contended that she did not buy the business from the Respondent as the asking price in May 2016 was €42,500 which she believed was too high, and where she offered €10,000 which was not accepted. She therefore continued to manage the business on behalf of the Respondent until November 2016.

The Complainant submitted a series of emails which she maintained demonstrated that from April 2016 and on a regular basis she was advising the Respondent of the cash flows in the business and of decisions that she was making regarding the running of the business and payment of bills. The emails submitted demonstrated that on 10^th May 2016 the Complainant was advised of the intention by the Respondent to sell the business, and where on 24^th May 2016 the Complainant was advised to proceed with running the business until the Respondent decided to sell it as a going concern or close it down. At that time the Complainant advised the Respondent that the uncertainty was unsettling for her and that she may have to find another job. On 15^th June 2016, the Respondent again contacted the Complainant to see if she was interested in purchasing the business and where she offered €10,000 for the business.

On 5^thAugust the Complainant submitted pay details for the staff and advised the Respondent that the staff were last paid on 26^th April 2016. The Complainant continued to submit the weekly hours of the staff until 12^th September 2016. At this time, and again on 15^th September 2016, the Complainant sought further clarification on matters related to the business. In an email dated 20^th September 2016 to the Respondent, the Complainant referred to being instructed by the respondent to let the staff know the business was closing.

On 25^th September 2016, the Respondent advised the Complainant that they had an offer on the business, and where the Complainant also indicated she had an offer to put on the shop herself. On 5^thOctober 2016, the Respondent replied to the Complainant indicating they would be back in touch with the Complainant. On 12^thOctober 2016, the Respondent asked the Complainant why a bill for the electricity had not been paid. On the same day, the Complainant made an increased offer for the business which was rejected by the Respondent.

On 14^th November 2016, the Respondent advised that he was issuing a P45 for one of the staff members. Then on 25^th November 2016 the Complainant sent the respondent a P43. On 2^nd December 2016, the Complainant wrote to the Respondent referring to the fact that she had been informed there was no further work for her and requesting a RP77. RP50, P45 and P60 be completed by the Respondent.

Section 7(2) of the Redundancy Payments Act 1967, as amended, states an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed…

Based on the above information I am satisfied that the Complainant remained an employee of the Respondent until 28^th November 2016 when she was in effect laid off as there was no further work available for her as the Respondent intended to cease to carry on the business. As such she is deemed to have been made redundant on that day. I therefore find that she is entitled to a redundancy payment.

CA-00008804-002: Finding in relation to Complaint under section 27 of the Organisation of Working Time Act, 1997

Section 19(1)(a) of the Organisation of Working Time Act 1997 provides employees with an entitlement to be paid annual leave equal to 4 working weeks in a leave year in which he or she works at least 1,365 hours. In accordance with the Act, the “leave year” means a year beginning on any 1st day of April.

Based on the evidence provided I am satisfied that the Complainant has an entitlement for eight months’ annual leave from April 2016 to end of November 2016.

Decision:

CA-00008804-001: Decision in relation to Complaint- Redundancy Payments

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that the Complainant was made redundant on 26^th November 2016, after 5 years 8 months’ service. I therefore decide that the Complainant is entitled to be paid a redundancy payment of 12.44 weeks based on €484 per week which amounts to €6,020.96.

CA-00008804-002: Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having found that the Complainant was not paid for her annual leave entitlement I declare that the complaint is well founded. I therefore require the Respondent to pay the Complainant 13.3 days annual leave based on a gross weekly wage of €484. I also require the Respondent to pay the Complainant a sum of €2,000 by way of compensation for its contravention of Section 19 of the Act.

Dated:   11 August 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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