Complainant

Respondent

Anonymised Parties

Café Worker Barista

Café Owner

Representatives

  Self

 No Attendance

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-00035807-001

22/04/2020

The employment of the Complainant was terminated on 27 November 2019,without notice. The complaint results from the refusal of her employer to pay redundancy or to respond to her contact seeking redundancy payment. This is an appeal against that refusal.

The Respondent named in the Decision is the Company name of the Respondent as known to the Complainant. The business is closed. However, the current legal status of the Limited Company is not known to the Complainant.

This was a virtual hearing held remotely.

The Complainant was employed by the Respondent from 04/07/2016 until 26/11/2019. The rate of pay was €10 per hour working thirty-six hours per week giving a gross pay of €360. There was a history of employment arrangements which changed over the course of time and she understood that the limited company named in this Decision became her employer in February 2018. However, there was no change in her employment status or terms and conditions of employment as a consequence of the change of employer in 2018. On November 26th, 2019 she was informed that the business was closing. She received her outstanding wages. Regarding her redundancy pay, she and another employee sent a redundancy form to the only address she had for the Respondent-but she was unsure whether that was his address or that of his father who was also an accountant.

The Respondent was  notified of the hearing by email and contacted by telephone by the WRC. On February 11th  2021 he emailed the WRC stating that the emails were in his spam folder, that  he could not attend the hearing on the scheduled date but perhaps could attend if it was held the following week as he was working on the day. A postponement was not granted. On the substance of the redundancy claim he wrote as follows:

‘There are no grounds for xx’s request regarding redundancy. She worked for [company A], a company that I was not a shareholder in for less than 2 years and the [Company B] for less than 2 years that I did own. 2 completely different entities. I don’t understand what I have to answer here? All companies are now out of business and I am working in a manufacturing company and considering personal bankruptcy. I don’t see how its fair that I have to take a day off work to attend something because someone with a history of being litigious decides to bring a complaint somewhere.’

As  is clear from the email contact with the WRC, the Respondent was aware of the hearing and chose not to attend, the hearing proceeded, and the case was heard. While the email from the Respondent is not evidence as such, the contents were considered, and the findings address the point of the separate legal entities who employed the Complainant.

From the available information it is a matter of fact that at all times the Complainant worked at the same job, under the control and management of the same person from 04/07/2016 to 27/11/2019. It follows that while the ownership of the employment may well have changed from one legal entity to another at some time in 2018,however from the available information, this was a transfer of one undertaking(the transferor) to another and with that transfer, the terms of employment of the Complainant passed over to the second legal entity(the transferee) [Transfer of Under takings (Protection of Employment) Regulations 2006 refer]. Based on  this finding , the Complainants service was continuous and not separate as implied by the Respondent in his email where he carefully set out her periods of employment as under two years in each entity, implying that she had no entitlement to redundancy pay as she had less than two years’ service in the employment which he did own. This suggests that the Respondent was aware that a period in excess of two years’ service entitles the Complainant to redundancy pay. In this he is correct-however as all of the Complainants service is found to be continuous, she has established that she is entitled to redundancy pay for the period 04 July 2016 to 26 November 2019. The Respondent refers to not having legal representation-it is suggested that a cost - free inquiry regarding the entitlements of the Complainant to the Workplace Relations Commission or other not for profit community-based organisation would have informed him of his obligations and the entitlements of the Complainant.

The applicable parts of Section 7(1) and (2) of the Redundancy Payments Act (1967-2015) state:

(1)    An employee, if he is dismissed by his employer by reason of redundancy …shall, subject to this Act, be entitled to the payment of moneys which shall be known… as redundancy payment provided-

(a)    he has been employed for the requisite period ,and

(b)    he was an employed contributor in an employment which was insurable….

(2)    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 in the place where the employee was so employed, or…’

As the business in which the Complainant was employed  ceased on 27 November 2019 she was dismissed for reasons of redundancy; she had requisite period and is therefore entitled to redundancy pay.

CA-35807     The appeal under Section 39 of the Redundancy Payments Act 1969 is allowed. The Complainant is entitled to entitled to redundancy pay on the following facts:

Start Date: 4 /07/2016

Termination Date: 27/11/2019

Gross weekly pay:€360

This Decision is subject to the Complainant being in insurable employment during the relevant period.

Statutory Redundancy