Complainant

Respondent

Anonymised Parties

Retail Assistant

Retailer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007255-001

29/09/2016

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

CA-00007255-002

29/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00007255-003

29/09/2016

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

CA-00007255-004

29/09/2016

The complainant worked as a Retail Assistant for the respondent who operated a number of retail outlets. The complainant commenced employment with the respondent in March 2009 and her employment terminated on 3 September 2016. The complainant was paid the appropriate minimum wage rate.

The complainant was dismissed without warning or procedure and without any documentation with regard to redundancy.

The complainant never received a RP50 form to allow her apply for her redundancy payment.

The complainant did not receive her statutory notice entitlement.

The complainant never received a written statement of her terms and conditions of employment.

The respondent had advised the complainant on several occasions that business had declined and, as a result, in January 2016 the respondent had to reduce the complainant’s working hours.

Because of the continuing trading difficulties, the shop in which the complainant worked had to close in September 2016.

The complainant was given two weeks’ notice of the closure.

The respondent is not in a position to discharge redundancy payments.

The respondent furnished a contract to the complainant.

The respondent gave evidence that the business had been in trouble since 2015 and that despite her best efforts it was decided in August 2016 that the shop would have to cease trading. The complainant was the only employee in that shop.

In January 2016 the respondent had reduced the complainant’s working hours to 23 hours per week and they were further reduced to 18 hours in February. The respondent sent a letter in mid-August to the respondent giving her two weeks’ notice of the closure and cessation of employment. The respondent also stated that she had informed the complainant to contact the Social Welfare office regarding redundancy as the business could not pay it.   The business ceased operating at the end of September 2016. A letter from her accountants verifying closure as of 30 September 2016 was put into evidence together with a copy of the notice of cessation of trading sent to the Revenue Commissioners. The respondent said that all shops ceased trading.

An issue arose as to the length of service of the complainant. The respondent bought the shop together with the fixtures, fittings and stock from her brother-in-law in August 2012. The complainant was the only employee in the shop at that time. A P45 form was issued to her dated 19 August 2012 but the evidence was that there was no actual break in service and that the complainant was working as normal performing the same duties from 20 August 2012 onwards. Having examined the evidence before me it is clear that, apart from a change of name, the business retained its identity, the customer base transferred, the activities post transfer were similar to those carried on before the transfer, the assets (stock and fixtures) transferred and the staff (the complainant) transferred. The transfer was therefore covered by The European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, S.I. No. 131/2000.   I therefore find that the complainant’s continuity of service is protected.

As regards notice, the respondent put into evidence a letter dated 17 August 2016 giving the complainant two weeks’ notice of closure. It was stated that this was sent by ordinary post. The complainant in evidence denied ever receiving this letter and said that when she spoke to the respondent at the time of the closure she was told that she could have notice in writing backdated but that she declined this offer. In relation to the contract there is also a conflict of evidence. The respondent produced a document entitled Contract of Employment which was dated 24 August 2012 and which the respondent said was signed by the complainant at that time. According to the respondent the contract was then signed by herself and put behind the till in the shop. The complainant for her part, both in her written submission and in evidence at the hearing, absolutely denied having ever seen the form while employed by the respondent. She particularly denied that the signature on the document was hers. Taking everything into consideration, I find the evidence of the complainant to be persuasive on these points and therefore accept her version of events.

In summary therefore, I find that the complainant’s employment was terminated by reason of redundancy, that I accept the evidence of the complainant that she did not receive her statutory notice of termination of her contract and that the respondent had failed to issue her with a statement of her terms and conditions of employment. From documentation supplied (P60 forms and payslips) it is clear that the complainant was employed on a full-time basis.

Complaint No. CA-00007255-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. Section 6(4) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(c) the redundancy of the employee…

From the evidence before me I find that the termination of the employment of the complainant was due to redundancy. This complaint therefore fails.

Complaint No. CA-00007255-002:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012. Section 7(2) of the Act states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a)    The fact that his employer has ceased, or intends to cease, to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease, to carry on the business in the place where the employee was so employed…

It is clear from the evidence that the respondent ceased trading. I therefore find this complaint to be well founded and order the respondent to pay to complainant a lump sum payment based on the following criteria:

Date of Commencement:       16 March 2009

Date of Termination:               3 September 2016

Weekly Wage:                           €338.55

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

Complaint No. CA-00007255-003:

This is a complaint under the Terms of Employment (Information) Act, 1994. Section 3(1) of the Act requires an employer to give or cause to be given to the employee a statement in writing of their terms of employment containing the particulars detailed in the Section.   For the reasons set out above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1,000.00 as compensation in that regard.

Complaint No. CA-00007255-004:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. Section 4 of the Act states:

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(c)if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks…

For the reasons set out above I find this complaint to be well founded and I require the respondent to pay to the complainant the sum of €1,354.20 (€338.55 x 4) as compensation in respect of the contravention.