ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007150

Parties:

        Anonymised PartiesA Sales AssistantA Retail Outlet    

Complaints:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00009733-001 15/02/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00009733-002 15/02/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009733-003 15/02/2017   Date of Adjudication Hearing: 22/11/2017 Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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 complaints.  

Background:

The complainant commenced her employment with the respondent on September 3rd 2008. She was given initial notice of the closure of the business on August 26th, 2016 and her employment eventually terminated on October 31st, 2016.

Summary of Complainant’s Case:

The complainant had been on maternity leave when she received a telephone call to say that the company was being ‘taken over’ and that her employment would terminate. The complainant stated that she had been advised of a Transfer of Undertakings on August 26th 2016 and that, thereafter, only two staff would be needed. There was a telephone call with the respondent around that time and a discussion about redundancy. She was asked for bank details with a view to transferring the redundancy payments but no payment was made. It continued to trade   for some time after it was due to go into liquidation but continued to trade beyond that date. A series of email exchanges between the parties in February 2016 was submitted in evidence. On February 14th the complainant received an email stating that she had not been ‘let go’ and that her job was being kept open for her after her maternity leave. She received another on February 16th 2017 from the respondent confirming that it was still trading and saying that the complainant’s employment had not been terminated  

Summary of Respondent’s Case:

The respondent did not attend the hearing. No explanation was offered for the failure to do so. He had engaged with the WERC by email on February 27th 2017. He had previously indicated a willingness to attend but due to short notice could not attend a previously arranged hearing. The hearing was adjourned and re-arranged to give him the opportunity to attend. However, he did not do so.  

Findings and Conclusions:

In the absence of the respondent it was very difficult to unravel the sequence of events. The complainant stated that she had been advised of a Transfer of Undertakings on August 26th 2016 and that, thereafter, only two staff would be needed. There was a telephone call with the respondent around that time and some discussion about are a redundancy payment but she did not receive any payment. From the email correspondence there appears to be a measure of agreement that the termination date was in October; the complainant says it is the 31st, the respondent the 9th. I find that the respondent’s circumstances and the engagement between the complainant and her employer point to the fact that the complainant was made redundant and is entitled to a redundancy payment. She is also entitled to payment of notice in respect of eight years’ service which is four weeks’ pay. Her complaint under the Unfair Dismissals Act fails as she was made redundant.  

Decision:

Section 41 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. 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. Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.   I uphold complaint CA-00009733-001 under the Minimum Notice and Terms of Employment Act 1973 and award her four weeks’ pay at the rate of €147.50 per week. I uphold complaint CA-00009733-002 under the Redundancy Payments Acts and award her a redundancy payment in respect of her service between September 3rd, 2008 and October 31st 2016 in accordance with the provisions of the Act and subject to her having been in insurable employment. I do not uphold complaint CA-00009733-003 under the Unfair Dismissal Act and it is dismissed.  

Dated:   18/12/2017                                      Workplace Relations Commission Adjudication Officer: Pat Brady