Complainant

Respondent

Anonymised Parties

A Head Chef

A Restaurant

Representatives

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-00019678-001

10/06/2018

The Complainant’s commenced employment, as the Head Chef, at the Respondent’s restaurant on 1 May 2015.   The Complainant’s employment ceased on 2 January 2018.

The Complainant submitted his claim to the Workplace Relations Commission on 10 June 2018.

The Complainant contends that his employment with the Respondent was terminated without notice in January 2018. According to the Complainant’s Contract of Employment, which was exhibited at the Hearing, he was entitled to 2 weeks’ notice based on his service.

The Complainant stated that, around Christmas 2017, the Respondent advised him that business was getting quiet and that he was getting somebody else to join him in the business. The Complainant stated the Respondent went on to advise that they were thinking of changing the restaurant around. According to the Complainant, the Respondent indicated that the restaurant would be closing for 2/3 weeks for renovation.

According to the Complainant’s evidence, in response to a query, the Respondent confirmed that the Complainant’s job was safe. The Complainant stated that he worked New Year’s Eve and New Year’s Day until 6:00pm. In further evidence, the Complainant stated that when he enquired about outstanding wages the Respondent informed him that he would look after him. In this regard, the Complaint stated that he was due four weeks holiday pay.

However, the Complainant stated that when his outstanding payments did not come through he queried this with the Respondent, who advised him that there was no money in the business to pay him. In addition, the Complainant stated that when he enquired about his job, he was informed that he would not be coming back as Head Chef, as the new person who was coming in would have his own people. The Complainant confirmed in evidence that he received no further communication from the Respondent after that.

The Complainant also submitted in evidence, at the Oral Hearing, that he did not receive any notice of the termination of his employment, as set out in his Contract of Employment. Additionally, the Complainant confirmed that he never received payment for the four weeks outstanding annual leave.

According to the Complainant’s evidence, when he eventually received his P45 it indicated that the cessation date of his employment was 2 January 2018.

In summary, the Complainant is seeking a favourable finding in relation to his redundancy. He is also seeking payment of two weeks’ notice, in the sum of €1,249.18 and outstanding holiday pay in the sum of €2,498.36.

The Respondent was represented at the Hearing by a family member, who is also a director of the company.   According to this representative’s evidence, the Respondent was not in a position to pay the Complainant as he did not have the money at the time.

It was further submitted that the new person who had taken over the restaurant had changed everything. The representative also stated that the Respondent has now gone out of the business.

Section 7 (2) of the Redundancy Payment Act, 1967, states as follow:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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, or

(b)    the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.”

Having carefully considered the evidence presented by the Complainant and that presented at the Hearing by the Respondent’s representative, I am satisfied that, in the context of the above section from the Act, the Complainant’s dismissal from the Respondent's employment represents dismissal by reason of redundancy. Consequently, I find that the Complainant's claim for redundancy is well founded.

In relation to the additional claims, raised by the Complainant at the Hearing, I note that his formal complaint, as submitted on 16 June 2018, only refers to his claim for redundancy, made under the Redundancy Payments Act. Consequently, I find that, as the Complainant’s claims in relation to notice and outstanding holiday pay were not properly before me for adjudication, I do not have any jurisdiction to consider these additional claims.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant was dismissed by reason of redundancy and, therefore, his claim for a lump sum redundancy payment has succeeded. The Complainant was a full-time employee.

Date of Commencement:        01/05/2015

Date of Termination:                02/01/2018

Gross weekly Pay:                   €721.00 - €600 of which is eligible for calculation.

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

Redundancy Payments