ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003867

Complaint for Resolution:

Date of Adjudication Hearing: 09/12/2016

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make myself available to make all relevant inquiries into the complaint or dispute.

The Complainant herein has brought a complaint (by way of a workplace relations complaint form) pursuant to his entitlements under the Redundancy Payments Acts and particularly under Section 7 and or section 37 of the 1967 Act which allows an employee over the age of 16 and in 104 weeks of continuous service to seek statutory redundancy in the event that his position ceases and he has not been replaced and his employer has failed to make the payment.

The Complainant herein has referred a matter for dispute resolution under Sections 39 of the Redundancy Payments Act, 1967.

The Parties :

A Chef -v- A Restaurant Business (In Liquidation)

Note : This Adjudication should be read in conjunction with Adjudication number - 00003863

Complainant’s preliminary Submission and Presentation:

The Complainant is a Brazilian national who came to Ireland in 2006 and worked as a chef in a busy bar and restaurant in the city centre . In and around 2015 the Complainant’s position within the Respondent Company became precarious as that company was having financial difficulties and going into liquidation.

It is accepted that the head chef in the Respondent Company rang the Director of another Company requesting that she find a position for the Complainant whose employment was attached to a workplace specific work permit. The Director of the second Company undertook to assist the Complainant and to do this as requested.

The Complainant who has some language barrier issues was not sure whether this was a continuation of Employment or (in line with a transfer of Undertaking to the First Respondent entity) or whether this was a Redundancy from his first job with a move to a second and entirely new job.

This issue had to be dealt with by way of a preliminary issue.

There was found to be no evidence to suggest that there was a continuation of service from the time served with the Respondent herein and the commencement of Employment with the alternative Employer. There was a Redundancy situation where the Respondent company was getting into financial difficulties and was in the process of going into liquidation whether voluntary or otherwise.

Decision: 

Re: Claim for Statutory Redundancy pursuant to entitlements under the Redundancy Payments Act of 1967.

I find the Complainant was made Redundant from his position with the Respondent named herein and is entitled to a payment of Statutory Redundancy under the usual terms and conditions including satisfying that the relevant social insurance contributions have been made.

The Complainant commenced his employment:

8^th of August 2009

The Complainant’s employment terminated:

16^th of January 2015.

The Complainant was on a Gross weekly wage of:

€380.00

Date:              26^th May 2017