Complainant

Respondent

Anonymised Parties

Accounts Assistant

Supermarket Operator

Representatives

Lyndsey Roice, Lyndsey Roice Accountants

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-00012357-001

07/07/2017

The complainant was employed as an accounts assistant by the respondent company which operated a supermarket business. The complainant commenced employment with the respondent in September 2003 and worked on a part-time basis. A receiver was appointed to the business and the supermarket closed in January 2017.   The complainant continued to do work for the respondent on a sporadic basis until the end of March 2017. The complaint is in relation to the fact that the respondent has not declared her redundant nor paid her a redundancy lump sum.  

The supermarket had temporarily closed for trading on two occasions prior to the final closure in January 2017 and the complainant had agreed to work from home.

In January 2017 although the complainant had been given notice of lay-off she was asked to work on the final accounts for the respondent as the computers were in her home.

The complainant continued to be paid by the respondent for this work while liaising on the phone with one of the owners.

At the end of March access to company programs was cut off and in mid-April the computers were given back to the Company Secretary and the complainant issued a RP9 Form to the respondent. In early May all documentation belonging to the respondent was returned.

The respondent requested that she attend disciplinary hearings but she declined on legal advice.   The respondent issued a letter of dismissal to the complainant in September 2017

The respondent company was never put in receivership but the receiver was given possession of the property in which the supermarket business operated.

The complainant continued to work on the company accounts following the closure of the supermarket and was paid.

The complainant was suspended with pay in May 2017 to allow investigation into allegations of a serious matter. The complainant was invited to attend an investigation hearing.

The complainant refused to attend either the investigatory meetings or the disciplinary hearings and was dismissed with effect from 18 August 2017. The complainant was given the right of appeal but did not do so.

The respondent did not make the complainant redundant.

There is a complicated background to these matters as it appears that receivers were given possession of the building in which the respondent operated the supermarket business in 2014. There followed a number of legal challenges, temporary closures and sit-ins.   The receiver finally took actual possession of the building in January 2017 and the directors were barred from entry to the premises. The complainant worked for the respondent as an accounts assistant and during all this turmoil had agreed to work from home with computers and documentation transferring with her. The complainant kept in contact with and received instructions from one of the owners by phone.

Following the closure of the supermarket most staff were given notice of lay-off. It would appear that the owners entertained hopes of resuming business but in fact the premises remained closed. The complainant agreed to stay on and complete the final accounts for the respondent. This task was completed at the end of March 2017 but the complainant’s access to the respondent’s computer programs was cut off some weeks prior to that.   The complainant received sporadic payments from the respondent during this time.   The computers were handed over to the company secretary in mid-April and all other documentation returned by early May. The complainant sent a RP9 Form to the respondent on 13 April 2017 but this was responded to on the basis that there was still some work to be completed.   The intermittent payments continued even though the complainant was no longer performing any work. It should be noted that the complainant’s daughter had been an employee of the respondent. When the daughter received a job offer the complainant stated that she requested permission from the owner to issue a P45 Form to her and to another employee and that the owner agreed to this.

In May the complainant received correspondence from the respondent alleging falsification of records and fraud and stating that she was being suspended with pay pending an investigation. The allegations were in connection with the issuing of the P45 and wage payments to her daughter. The complainant was invited to attend an investigation hearing but refused on legal advice. Other invitations to investigations / disciplinary hearings followed which the complainant did not attend and finally on 4 September 2017 the complainant received a letter from the respondent dismissing her and enclosing her P45 Form. The last payment received from the respondent was on 18 August 2017.

Section 7(2) of the Redundancy Payments Act, 1977, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy 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 that business in the place where the employee was so employed…

It is clear that the business ceased trading when the receivers took possession of the building in January 2017. There was some residual work available for the complainant but, according to her evidence this ceased at the end of March. The complainant applied for redundancy but was refused on the basis that there was still work available for her. None, however, was forthcoming.   Payments were made to the complainant but were variable both in amounts paid and in frequency.

The complaint is being contested on behalf of the respondent on the basis that the complainant was dismissed for misconduct. None of the principals involved with the respondent attended the hearing and they chose to be represented by a person who had himself no involvement with any of the matters connected with the purported dismissal. The complainant gave evidence that her daughter had assisted her in some of the work at home. The P45 for her daughter was issued with the consent of the owner who, according to the complainant, always directed matters even though he had stood down as a Director. Payroll was also approved by this person. Although this case is not under the Unfair Dismissals Acts nevertheless there is a requirement for evidence to be presented in support of the allegations of misconduct justifying dismissal and this the respondents have elected not to do. On the basis of the evidence before me therefore, I find that the complainant acted in accordance with instructions and in line with the procedures in place at that time. I also find that the complainant’s employment ceased by reason of redundancy in accordance with Section 7(2)(a) of the Redundancy Payments Act !967. I note that payments were made to the complainant (albeit sporadic in timing and not full payments) up until 18 August 2017.

Complaint No. CA-00012357-001:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012. For the reasons stated above I find this complaint to be well founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:       21 September 2003

Date of Termination:             18 August 2017

Gross Weekly Pay:                 €243.00

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