Complainant

Respondent

Anonymised Parties

Kitchen Staff

Café

Representatives

Annemarie Campbell, North Leinster Citizens Information Centre CLG, Longford CIS

No appearance or representation

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-00032356-001

20/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00032356-002

20/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032356-003

20/11/2019

The Complainant commenced employment with the Respondent on the 1st February 2014. She worked an average of 25 hours per week, for which she received remuneration of €276.85. On 29th July 2019, the Complainant’s employment was terminated by the Respondent.

On 20th November 2019, the Complainant lodged complaints under the Redundancy Payments Acts, the Organisation of Working Time Act and the Payment of Wages Act with the Commission. A hearing in relation to all matters was convened and finalised on the 20th January 2020.

The Complaint was employed by the Respondent as a kitchen assistant from 1st February 2014. The Complainant worked an alternating rota of 24 and 26 hours, allowing for an average weekly remuneration of €276.85.

On 9th July 2019, the Complainant commenced a period of annual leave. On 19th July, whilst on this annual leave, the Complainant received a call from one of her colleagues advising that that the Restaurant employing them both had closed. On 29th July 2019, when the Complainant had returned from annual leave, she received correspondence dated 20th July 2019 from the Respondent. This correspondence advised that as a result of a downturn in business, the Complainant’s role would no longer exist. On that day the Complainant was verbally informed by her line manager that he expected new owners to take over the business with a view to re-opening the restaurant. By the date of the hearing this had not transpired, and the Respondent had not replied to further correspondence in this regard.

The Complainant submitted that the termination of her employment represented a redundancy within the meaning of the Acts. She further submitted that she was entitled to four weeks’ statutory notice payment in respect of her service.

The Complainant stated that she accrued an annual leave entitlement from 1st January 2019 to the date of the termination of her employment. She calculated this unpaid entitlement at €676.45 and alleged that she was not compensated for same at the termination of her employment

The Respondent did not attend the hearing or make any submission or representation in relation to the complaints. I am satisfied that the Respondent was notified, in writing, to the address provided on the complaint form, of the date, time and place at which the hearing to investigate the complaints would be held. No explanation has been proffered for this absence since the date of the hearing. In the circumstances I will make my decision based on the evidence of the Complainant only.

CA-00032356-001 Redundancy Payments Acts

Section 7(2)a of the Redundancy Payments Acts lists the following situation as a valid ground for redundancy;

“the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes 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”.

This section clearly describes what has occurred in this instance- the Complainant’s employer ceased to carry on business, effectively making her role redundant.

In the circumstances the Complainant is entitled to a statutory redundancy payment based on the following information.

Date of Commencement:               1st February 2014

Date of Termination:                     29th July 2019

Average Weekly Wage:                 €276.85

CA-00032356-002 Payment of Wages Act

It is again clear that the Complainant is entitled to a payment of statutory notice on foot of her redundancy.

The definition of “wages” contained in Section 1 of the Act includes,

“any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”

In light of the same, a notice payment clearly constitutes “wages” for the purpose of the Act and the Respondent failure to pay the same represents a breach of the Act.

CA-00032356-003 Organisation of Working Time Act

Section 23 of the Act provides that,

“Where…an employee ceases to be employed…the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

On the termination of employment, the Complainant did not receive any form of compensation for outstanding annual leave, in contravention of this provision.

CA-00032356-001 Redundancy Payments Acts

I allow the Complainant’s appeal and her complaint is well founded.

Based on the uncontested evidence of the Complaint I find that the Complainant is entitled to a statutory redundancy payment based on the following information:

Date of Commencement:               1st February 2014

Date of Termination:                     29th July 2019

Average Weekly Wage:                 €276.85

CA-00032356-002 Payment of Wages Act

Section 6 of the Act requires that I make a decision in relation to this complaint. In the circumstances I find that the complaint is well founded.

Having regard to redress, Section 6 provides that I may direct the Respondent to pay the Complainant compensation not exceeding the amount due had the wages been paid. In light of the same, I direct the Respondent to pay the sum of €1,107.40, representing four weeks unpaid notice.

CA-00032356-003 Organisation of Working Time Act  

Section 27 of the Act requires that I make a decision in relation to this complaint. In the circumstances I find that the complaint is well founded.

Regarding redress, Section 27 allows for a payment of compensation “not exceeding 2 years’ remuneration in respect of the employee’s employment”. In the circumstances I find that the Respondent should pay the Complainant the sum of €1,000 in respect of the breach of Section 23 of the Act. For the avoidance of doubt, this payment is by way of compensation.

Non-attendance, redundancy, annual leave on termination, notice.