ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Shop Assistant
| Retail Shop |
Representatives |
| Joe Bolger ESA Consultants |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00029691-001 | ||
CA-00029691-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Act, 2003 an eligible employee who is found to be redundant is entitled to two weeks statutory redundancy payment for every year of service. A further bonus week is added to this. All of this is based on the gross pay subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions.
Under the Redundancy Acts a complainant must be able to show two years of service in the employment. The referral has been made within six months of the date on which this claim accrued to the Complainant.
In addition to the foregoing, the Complainant herein makes a complaint of a contravention (by the Employer) of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and in particular has referred a matter for adjudication as provided for under Section 11 of the Minimum Notice and Terms of Employment Act, 1973. The complaint herein is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973.
The referral has been made within six months of the date on which this claim accrued to the Complainant.
Background:
The Complainant issued a Workplace Relations Complaint form on the 11th of July 2019 following the alleged cessation of employment with the Respondent company on or about the 14th of June 2019. |
Summary of Complainant’s Case:
The Complainant gave evidence in her own right and relied on the evidence of her line manager a Ms. C in support of her case. |
Summary of Respondent’s Case:
The Respondent presented with representation and I was provided with a comprehensive submission together with a book of documentation which was opened to me in the course of the hearing and which I have fully considered in advance of making a final decision. One of the Director’s of the Respondent company a Ms. C was in attendance to make the Respondent’s case. |
Findings and Conclusions:
The Complainant herein commenced employment with this employer on the 1st of February 2016 and service was continuous up until the 14th of June 2019. The place of employment was a convenience shop run on the forecourt of a petrol station. The Employer operated a franchise for the food, deli and provisions end of the business and had leased the shop from a third party known as Mr. B who retained the control of the fuel end of the business On that said date (June 14th 2019), the Complainant was notified by the area Manager Ms. CT that the Respondent “..will no longer be your employer and will cease trading…[at the retail unit]”. This communication was received by text message generally circulated to all staff either by the Area Manager – CT- or the immediate line Manager Ms. C who gave evidence to this effect. The text was received late on the night of June 14th. I fully accept that the Employee had no inkling that the employment was going to come such an abrupt end. I also fully accept that the circumstances giving rise to the termination of the employment was beyond the Employer’s control. The Employer’s Lease was due to expire and rather than negotiate a wind-down or handover, the Landlord Mr. B sought to immediately eject the Respondent. I have seen correspondence dated the 14th of June between Solicitors and I have no reason to doubt that before that date the Respondent had expected to either re-new the Lease, or execute an orderly departure and I note that there had been previous correspondence ( resting with a letter dated 10th of April 2019) though I do not know what negotiations had been entered into between the parties. In any event, things came to a head on the 14th of June 2019 and the Respondent was forced to try and strip out all of the stock and assets it owned on the premises late on that evening. I understand that Mr. B was present at the workplace trying to prevent the stock getting taken out and that eventually the Gardai were called to oversee this acrimonious evacuation process. Ms. C provided me with her eye-witness account of these events which were very upsetting for her as she had no idea what this meant for her, and her loyal staff (including the Complainant) all of whom have the usual financial and other commitments. I am fully satisfied that these circumstances amounted to the Employer being forced to spontaneously terminate the employment of each and every individual member of its staff. The Complainant’s employment was terminated without notice (statutory or otherwise) and amounted to a Redundancy where the Respondent had to “..terminate all employment within the two garages with immediate effect.” At the time of termination, no provision had been made for the Complainant’s future status by the Employer and there is no suggestion that as of the 14th of June 2019 the Employer expected that it’s staff would be entitled to move seamlessly into the employment of Mr. B who had taken back control of the forecourt and convenience shop. I do accept that the Complainant was ultimately engaged by Mr. B back into the position she had previously held with the Respondent. The Complainant gave this evidence. Mr. B was not at the hearing though I am advised that he rejects any argument that there has been a Transfer of Undertaking. I am also satisfied that the Contract of Employment with Mr. B legally commenced on the 17th of July 2019 and that the terms and conditions under this employment were different to those the Complainant had enjoyed under the Respondent. This evidence tends to demonstrate this was not a Transfer. The Respondent’s representative has urged that I accept that by operation of law that there has been a Transfer of Undertaking and that Mr. B in subsequently taking on the employment of the Complainant (and other staff members) must be expected to take on the accruing rights and conditions – including service and holiday entitlements etc. I find I cannot accept this argument where there was a four-week period between the cessation of one Contract of Employment and the commencement of another Contract of Employment. I make this finding in the full knowledge of the fact that the Complainant may or may not have been engaged on a casual cash-payment basis for that interim four-week period. This period amounted to a period of uncertainly and I do not blame the Complainant for sticking with what she knew even if it meant she was off the books for a period of time. These facts do not present as a Transfer of Undertaking and I therefore cannot find that there was one. I have advised the Complainant that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. I am satisfied that the employment extended beyond the 104 weeks required under Statute. |
Decision:
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 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00029691-001 I find that this employment with the Respondent terminated on 14th June 2019 by reason of redundancy. I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria: Date of Commencement: 1st of Feb 2016 Date of Termination: 14th of June 2019 Gross Weekly Pay: €357.00 This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00029691-002 The Complainant is entitled to be paid in lieu of Minimum Notice based on the dates: Date of Commencement: 1st of Feb 2016 Date of Termination: 14th of June 2019 Based on a Gross weekly wage of €357.00.
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Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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