ADJ-00009091

Complainant

Respondent

Anonymised Parties

An Administrator

A Chiropractor

Act

Complaints Reference No.

Date of Receipt

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

CA-00011913-001

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011913-002

15/06/2017

This is a Claim for a Lump Sum Redundancy payment with Minimum Notice.

The Complainant worked as an Administrator in a chiropractic practice from 2 January, 2012 to 15 Match 2017. She was paid a weekly sum of €225.00 gross for a 15-hour working week.

On August 1, 2016, the practice was taken over by the Respondent via Transfer of Undertakings and the complainants hours were reduced sporadically to 8 hrs a week.

The Complainant was informed by text what her weekly hours were and she never accepted the reduction in hours imposed. The Complainant verbally requested reinstatement to her 15-hour working week.

On 13 March, 2017, the complainant was advised by text of one weeks’ notice of termination of her employment. Her last working day was 15 March, 2017.

The Complainants Solicitor advanced two letters to the Respondent dated 12 April and 2 May, 2017 seeking access to a Redundancy payment and payment of 4 weeks Minimum Notice. There was no response.

The Complainant forwarded an RP77 to the Respondent on 31 May 2017.

CA-00011913-001 Claim for Lump Sum Redundancy Payment.

The Complainant is in receipt of Carers Allowance, which permits her to work up to 15 hours per week. She traditionally worked on Monday, Wednesday and Friday until the business was formally taken over by the Respondent in August 2016.

The Complainant gave evidence that she did not receive official notification of the transfer but contended that she received the same pay, was based in the same premises, doing the same job on the date of transfer. In addition, she worked the same hours and received the same annual leave. Initially post transfer she worked her usual hours, but these were reduced at the end of September 2016. She habitually requested whether she was needed for Friday working, only to be told by the Respondent on 30 November, that she was to retain the Monday and Wednesday working and Fridays were to be reviewed in the new year.

The Complainant submitted that she sought a redundancy payment at the time of her termination but was refused. She understood that the Respondent had sold the business and moved to the US.

There were no other employees. The Complainant submitted that she was given assurances of her continuity of employment when the business transferred in August 2016.

The Complainant sought a lump sum payment at the rate of €15.00 per hour for a 15-hour week for the period 2 January, 2012 – 9 April 2017, being the date the 4-week notice period ended.

The Complainant submitted details of P45 and P60 for years 2015 and 2016. She submitted a Pay Slip dated 6 August 2016.

CA-00011913-002 Minimum Notice claim.

The Complainant claimed 4 weeks’ notice under the Act in view of her 5 years’ service. She submitted that she was not permitted to work her notice.

There was no appearance by or on behalf of the Respondent at the hearing. On July 10, 2017, the Respondent informed the WRC of a change of address in Limerick. On 25 September, the Respondent sought an adjournment of the hearing set down for October 6, 2017. He cited that he was required overseas to deal with a close family sickness. This adjournment was not granted.

I have considered the case before me. I am satisfied that the Respondent was on notice of the hearing and chose not to attend. No documentation had accompanied the request lodged by for an adjournment. I allowed a short waiting period at the commencement of hearing to facilitate a delayed attendance. No attendance was forthcoming. I proceeded with the hearing. I did not have the benefit of a contract of employment from either employer cite in this case.

CA-00011913-001 Claim for Lump Sum Redundancy Payment.

I have considered the evidence adduced by the complainant in this case. In addition, I have reflected on the submissions of the Complainants Solicitor.

The Complainant advanced a copy of a CRO search which confirmed that the Business name changed on 17 July 2017, yet the Business address stayed the same. I note that the Respondent described his business as that of a sole trader in his communication with the complainant and this is reflected in the legal entity referenced on the claim form. I find that the complainant has established continuity in her employment from January 2012, which was protected under the European Community (Protection of Employees on Transfer of Undertakings) Regulations ,2003 S.I 131/2003.

For the purposes of the Redundancy Payments Acts 1967 -2012, an employee is dismissed because of redundancy if for one or more reasons not related to the employee concerned, her dismissal is attributable “wholly or mainly” to one of the five situations outlined in Section 7(2) of the Act. This is linked to “impersonality and change” St Ledger V Frontline Distributors Ireland ltd [1995] ELR 160.

There is an onus on a reasonable employer to engage in the statutory procedures around termination of employment, whether the prospect of a Redundancy is mooted or not. An employment relationship is based on trust and confidence and communication surrounding the termination should be more expansive than a text message. I found this termination by text and the lack of engagement in follow up correspondence to be void of respect and procedurally deficient. The Respondent had not lodged a defence to the claim. My findings are based on the evidence adduced by the complainant.

Based on the evidence before me, I find that the complainant was dismissed because of redundancy in accordance stated in Section 7(2) (c) of the Acts.

The fact that her employer has decided to carry on the business with fewer or no employees, whether by requiring the work which the employee has been employed (or had been doing before her dismissal) – to be done by other employees or otherwise.

The Question of enumeration of the complainants working week proved challenging. She submitted that she worked a 15-hour week in advance of the Transfer, which was reduced by the Respondent. I accept that the complainant did not accept her imposed reduction in hours during the year before her termination of employment.

From my perusal of the P60s, P45, the singular pay slip and the Table of hours worked by the complainant from August 2016, I have found that the complainant worked the 15-hour week which she claimed, which was then reduced on transfer to the Respondents employment. As already stated, I accept that she had objected to this reduction in the year before her redundancy and had not accepted the reduction. She is, therefore entitled to receive her redundancy payment based on the 15 hours per week as a part time worker.

CA-00011913-002 Minimum Notice claim.

Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides for an obligatory period of notice when terminating a contract of employment. I accept that the Respondent terminated her employment. I find that the complainant was denied that notice period and her claim is well founded and she is entitled to succeed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00011913-001 Claim for Lump Sum Redundancy Payment.

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

I find that the complainant was made redundant from her employment on 15 March 2017. I find that the complainant is entitled to a Redundancy lump sum payment based on the following details.

Date of Commencement: 2 January 2012

Date of Termination:           15 March 2017

Gross Weekly Wage:           €225 (that is 15 hrs x €15 per hour)

There were no breaks in employment and the award is subject to the complainant being in insurable employment under the Social Welfare Acts during the relevant period.

CA-00011913-002 Minimum Notice claim.

Section 11 of the Minimum Notice and Terms of Employment Act ,1973 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that the claim is well founded. I order the Respondent to pay the complainant 4 weeks’ pay in lieu of notice in accordance with Section 4(1) (c) of the Act. I have calculated that pay based on the average of the last 13 weeks of work at 7.5 hours per week. i.e. €112.50 per week.

Redundancy and Minimum Notice