ADJ-00006595

Complainant

Respondent

Anonymised Parties

Photographer

Photography Business Owner

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 39    of the Redundancy Payments Act, 1967

15/12/2016

The complainant was employed as a photographer in the   business run by the respondent. He   commenced work in September 1994 and was continuously employed since that   time. The owner of the business died   in January 2016. It would appear that   the owner entered bankruptcy in 2015, a fact that the complainant only became   aware of some time later.

The complainant was employed as a photographer by the   respondent in the business from September 1994 until the death of the owner   in January 2016.

The complainant’s understanding is that the owner operated   as a sole trader for the past number of years.

The complainant’s employment was continuous.

Attempts to get a P45 or P60 form from the owner’s   accountants have been unsuccessful.

No appearance

The respondent’s wife attended the hearing with   representation. Some of the   documentation regarding the complaint had been addressed to her. Her evidence was that her husband had been   adjudged bankrupt in June 2013 and that his affairs were in the hands of the   Official Assignee, Insolvency Service of Ireland. The respondent unfortunately died on 23   January 2016. It was accepted by the   complainant that the respondent’s wife had no involvement in the business   whatsoever and that he had no wish to include her in this matter.

The complainant gave evidence that he had been employed on   a continuous basis by the respondent since September 1994. It would appear that the respondent traded   under a number of different titles during this period but that at all times   the respondent was the owner of the business.   An examination of P60 forms in respect of the complainant show that different   titles appear as the employer’s name on different years but that the most   recent years, from 2011 onwards, show the respondent’s name as the employer.   The complainant was never advised of any transfer of his employment.

The complainant stated that he had not been aware of the   respondent’s bankruptcy until some time after the event in Autumn 2015. The business continued during this period and   he continued to be paid. In recent   times he did not receive a pay slip as such but rather an email advising him   on a fortnightly basis of the amount transferred into his bank account. These payments continued up to the time of   the death of the respondent in January 2016. The net payments for most of   2015 amounted to €1,240.00 per fortnight but the final payment made on 11   January 2016 stated that this had now been increased to €1,340.00 per   fortnight. The complainant   subsequently set up a new company himself to continue on the business.

Section 21 of The Redundancy Payments Act, 1967, states:

(1)      Where,   in accordance with any enactment or rule of law, any act on the part of an   employer or any event affecting an employer (including, in the case of an   individual, his death) operates so as to terminate a contract under which an   employee is employed by him, that act or event shall for the purposes of this   Act be treated as a termination of the contract by the employer, if apart   from this subsection, it would not constitute a termination of the contract   by him.

(2)      Where   –

(a)      subsection   (1) applies,

(b)      the   employee’s contract of employment is not renewed, and

(c)       he   is not re-engaged under a new contract, as provided by Section 9(2),

he shall for the   purposes of this Act be taken to be dismissed by reason of redundancy if the   circumstances in which the contract is not renewed and he is not re-engaged   (as provided by the said section 9(2)) are wholly or mainly attributable to a   fact specified in Section 7(2).

Section 3 of Schedule 2, Part 1, of the Act states that an   employee who has his contract renewed or is re-engaged by a personal representative   of the deceased (within 8 weeks) shall not be treated as being dismissed.

In this particular case the respondent’s wife has   clarified that she has had no involvement in the business at all.

Based on the evidence before me I am satisfied therefore   that the complainant was made redundant in accordance with the provisions of   Section 21 of the Redundancy Payments Act, 1967. It should be noted that the maximum amount   of gross pay allowable for the calculation of statutory redundancy   entitlement is capped at €600.00 per week.      

Complaint No.   CA-00008807-001:

Based on the   uncontested evidence before me I find that the complainant was made redundant   on 23 January 2016 under Section 21 of the Redundancy Payments Act, 1967 and   that he is entitled to a lump sum payment having regard to the following   criteria:

Commencement Date:       30 September 1994

Termination Date:             23 January 2016

Gross Pay:                           €600.00 weekly

Any award under the Redundancy Payments Act is subject to   the complainant having been in insurable employment for the relevant period   under the Social Welfare Acts.

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