Complainant

Respondent

Anonymised Parties

Catering Assistant

A cafe

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018005-001

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018005-002

16/03/2018

The complainant was employed as a catering assistant by the respondent company which operated a café in a small retail centre. The complainant commenced employment on 2 May 2011 and her employment terminated on 1 May 2017. The complainant normally worked 25 hours per week.

When the complainant presented herself for work on 1 May 2017 she found the café closed and the premises empty.

The complainant did not receive any redundancy payments.

The complainant did not receive any notice of the closure nor did she receive any payment in lieu of notice.

The respondent had no option but to close the café as the business was no longer viable and had been operating at a loss for some time.

There was confusion as to the paperwork related to the complainant’s redundancy.

There was no attendance by the anyone on behalf of the respondent. The owner contacted the WRC by email on the day before the hearing and advised that she would not be attending as she was working. The respondent’s solicitor could not attend as he was on holidays. The owner was not disputing the complainant’s claim and explained that the business ceased as it had been trading unprofitably for some time beforehand. The premises had been handed back to the landlords.

The complainant’s evidence was that she had commenced working in the café on 2 May 2011. The complainant was continually employed since that date. In February 2013, according to Revenue records, a Transfer of Undertaking occurred but there was no break in the complainant’s service as she continued to work in the same premises performing the exact same duties. The transferee was DCO Café Ltd. Her employment continued until 1 May 2017 on which date she reported for work to find the premises closed and empty.   Attempts to contact the owner were unsuccessful. The complainant did not receive any payments in relation to her redundancy nor was she paid any monies in lieu of notice.

Complaint No. CA-00018005-001:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012. The complainant attended work on 1 May 2017 to find the cafe premises empty and locked. Subsequent to this termination of employment she served a RP77 Form on the respondent at an address where she had been advised that the respondent’s owner would receive same but received no response. The complainant contacted her local Citizens Information Service at this time also. Acting on their advice the complainant contacted Revenue regarding her situation.   Having had no further contact with from the respondent’s owner the complainant applied to Revenue for confirmation of her employment history. Revenue, by letter dated 16 January 2018, confirmed the following:

Employed by Company A from 2 May 2011 to 3 February 2013

Employed by Company B (respondent) from 4 February 2013 to date unknown as not advised by employer.

I note that both companies had the same registered address which was the site of the café where the complainant worked. I also note that the letter states that Revenue have no way of knowing the legal title or address of any of their customers.

Documentation served on the respondent at the above address in connection with this case was returned unopened by An Post. The WRC were advised by the complainant’s representative of the efforts to establish contact with the respondent. Finally, on the day before the WRC adjudication hearing, an email was received from the owner as outlined above.

Based on the information before me I am satisfied that the complainant’s employment was terminated by reason of redundancy and that she had continuous service from 2 May 2011 until 1 May 2017.

Complaint No. CA-00018005-002:

This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant did not receive any payment that was due to her in lieu of notice. As noted above, the complainant’s employment terminated on 1 May 2017. The complaint form was lodged with the WRC on 16 March 2018. Section 41(6) of the Workplace Relations Act 2015 states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates.

Section 41(8) of the Act states:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period is due to reasonable cause.

The evidence submitted at the hearing referred to the difficulties encountered by the complainant in contacting the respondent’s owner. The complainant had consulted one branch of the Citizens Information Service (CIS) and got advice. The complainant had submitted Form RP77 to an address provided by a third party but had got no reply (that form refers of course to a redundancy payment).   The complainant had moved residence to another part of the country in September 2017 and subsequently contacted a different branch of CIS seeking advice in relation to her issues.   The Labour Court has considered the question of what constitutes “reasonable cause” so as to allow the extension of the time limit as per Section 41(8). In Cementation Skanska v Carroll (DWT0338) the Court stated:

“The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.   Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim on time.”

While I appreciate that there was a lot of change happening in the complainant’s life I do not believe that there existed a particular matter or matters that prevented the claim being lodged within the 6-month time frame. I therefore find that the criteria in relation to reasonable cause do not exist that would allow me to invoke the extension of the time limit under Section 41(8) of the Act and accordingly must find that the complaint is out of time.

For the sake of clarity, it should be noted that different time limits apply to complaints under the Redundancy Payments Acts.

Complaint No. CA-00018005-001:

Based on the evidence before me I find this complaint under the Redundancy Payments Acts, 1967 – 2012, to be well founded and find that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:       2 May 2011

Date of Termination:             1 May 2017

Gross Weekly Pay:                 €252.97

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Complaint No. CA-00018005-002:

For the reasons stated above I find that the complaint was presented in excess of 6 months after the date of termination of the complainant’s employment (date of contravention) and that therefore, in accordance with Section 41(6) of the Workplace Relations Act 2015, it cannot be entertained. The complaint fails accordingly.