ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029507
Parties:
| Complainant | Respondent |
Parties | Caroline Power | Sinead Moore Projects Limited Interiors Atelier |
Representatives | Self | Sinead Moore |
Complaints:
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-00039856-001 | 14/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00039856-002 | 14/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039856-003 | 14/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039856-004 | 14/09/2020 |
Date of Adjudication Hearing: 23/07/2021
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. I explained the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24 and gave the parties the opportunity to consider the changes. The complainant and the respondent indicated they wanted to proceed with the hearing. Each party was given the opportunity to ask questions of the other side. No questions were asked. I asked the complainant to provide me with a copy of a payslip and her contract of employment. Documents were received from the complainant on 27 and 29 July 2021.
Background:
The complainant was employed as an interior designed by the respondent company from 03 October 2016 to 16 June 2020, when she was made redundant. She had worked a 32 hour week and her net pay was €500.00 per week. The complainant claims she was not given notice of her redundancy, was not paid statutory or contractual notice or payment in lieu of notice. Further she was not paid a redundancy payment when her employment was terminated, and she did not receive proof of her employer’s inability to pay redundancy. She submitted her complaint to the Workplace Relations Commission on 14 September 2020. |
Summary of Complainant’s Case:
The complainant was employed as an interior designer by the respondent company. On 18 January 2020 she was placed on lay off for a few weeks. In March 2020 the respondent’s shop was closed due to public health restrictions arising from the Covid-19 pandemic. The complainant remained on lay off until 16 June 2020. On that date she received a phone call from the director of the respondent company informing her she was being made redundant with immediate effect. The complainant was not given notice of her redundancy. The director of the respondent informed the complainant that the company was unable to pay her the statutory redundancy payment. On 24 June 2020 the complainant requested the company provide her with supporting financial documentary evidence, from the company accountant or solicitor, confirming the company was unable to pay her statutory redundancy. She sent numerous e-mails and text messages over the following three months requesting these documents, but the respondent failed to provide her with the said documents. On 28 August 2020 the complainant gave the respondent a final deadline of 06 September 2020 to provide the necessary information. As the respondent failed to provide the complainant with the documents requested or to pay her a redundancy payment the complainant submitted her complaint to the Workplace Relations Commission on 14 September 2020. The complainant claims she is entitled to receive notice pay and redundancy pay. Under her agreed terms of employment, she had been paid €500 net per week. The complainant stated she just wanted to be paid the money rightfully due to her. |
Summary of Respondent’s Case:
The director of the respondent company confirmed the complainant had been laid off in January 2020. She stated that it was a very difficult time as the company was under financial pressures and she was dealing with a family bereavement. She had asked the complainant to take a few weeks off but then in March 2020 the shop had to shut due to the public health restrictions arising from the Covid-19 pandemic. The director confirmed she informed the complainant she was being made redundant on 16 June 2020. She stated the business did not have money to pay the complainant her redundancy pay. She had not received post at the registered address of the company as the premises had been sub-let. The director of the respondent company accepted that the complainant did not receive a redundancy payment, or a payment in lieu of notice. She confirmed that she had not provided the complainant with the documents requested due to the financial pressure she was under and to dealing with a family bereavement. She had been unable to make payments to her accountant and the business accounts were not completed at that time the complainant requested the statement of inability to pay her redundancy payment. |
Findings and Conclusions:
CA-00039856-001 Claim under the Redundancy Payments Act, 1967 for a redundancy payment. The complainant was informed she was being made redundancy on 16 June 2020. She was also informed that the respondent was unable to pay her statutory redundancy. Section 7 of the Act, as amended provides the following concerning the right to redundancy payment: General right to redundancy payment. 7.— (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—
(a) he has been employed for the requisite period, and
(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four yearsending on that date.
(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concernedthe 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 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, or (b), (c), (d), (e) …
Having considered the documents provided by the complainant and the statements of the director of the respondent company I am satisfied that the complainant’s employment was terminated by reason of redundancy on 16 June 2020 and she is entitled to a redundancy payment in accordance with the Act. I am also satisfied that the complainant was not paid a redundancy payment at the time of termination or since.
CA-00039856-002 Complaint under the Redundancy Payments Act, 1967 that the complainant did not receive proof of her employer’s inability to pay redundancy. The complainant provided copies of text messages/e-mails between her and the director of the respondent company seeking documentary evidence, from the respondent’s accountant or solicitor, confirming the respondent was unable to pay her redundancy payment. There were twenty two communications between 24 June and 29 August 2020. The director on several occasions promised to provide the required documents but failed to do so. I have reviewed the communications provided by the complainant and I am satisfied that the respondent failed to provide her with documentary evidence of the company’s inability to pay redundancy. I find the complaint is well founded. CA-00039856-003
Claim under the Minimum Notice and Terms of Employment Act, 1973 that the complainant did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof.
The complainant stated she was informed on 16 June 2020 that she was made redundant effective that day. The director of the respondent company accepted that complainant had not been given notice of her redundancy or paid in lieu of a notice period.
The Act provides the following in respect of a notice period:
Minimum period of notice. 4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
(a) if the employee has been in the continuous service of his employer for less than two years, one week,
(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,
(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
The complainant was employed by the respondent company from 03 October 2016 to 16 June 2020. The respondent acknowledged that the complainant was not given two weeks’ notice and was not paid in lieu of notice. I find that the complaint is well founded and that under Section 4(2) of the Act the complainant was entitled to a notice period of two weeks or payment in lieu thereof.
CA-00039856-004
Claim under the Minimum Notice and Terms of Employment Act, 1973 that the complainant did not receive her contractual period of notice on the termination of her employment or payment in lieu thereof.
Following the hearing the complainant provided me with a copy of her contract of employment. The contract provides that after the probation period if either party wishes to terminate the employment relationship one months’ notice will be required.
The respondent acknowledged that the complainant was not given notice of the termination of her employment. I am satisfied that the complainant did not receive one months’ notice or payment in lieu of notice of the termination of her employment and I find that her complaint is well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00039856-001 Claim under the Redundancy Payments Act, 1967 for redundancy payment. Having carefully considered the submissions and documents provided by the complainant I find the complainant’s employment was terminated by reason of redundancy on 16 June 2020 and she was not paid a redundancy payment in accordance with the Act. Accordingly, I allow the complainant’s appeal and decide that she is entitled to a statutory redundancy payment to be determined having regard to the following criteria: Date of commencement: 03 October 2016 Date of termination: 16 June 2020 Net weekly pay: €500.00 The employment agreement did not provide a gross weekly rate but rather a rate of €500.00 per week after tax. (Gross pay per P60 for tax year ended 31 December 2017 €30915.63) The award is made subject to the complainant having been in insurable employment within the meaning of the Act for the relevant period. CA-00039856-002 Complaint under the Redundancy Payments Act, 1967 that the complainant did not receive proof of her employer’s inability to pay redundancy. I have reviewed the documents provided and considered the submissions. I am satisfied that the respondent failed to provide the complainant with documentary evidence of the company’s inability to pay her a redundancy payment. I find the complaint is well founded. CA-00039856-003
Claim under the Minimum Notice and Terms of Employment Act, 1973 that the complainant did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof. I find the complaint is well founded and that under Section 4(2) of the Act the complainant is entitled to a notice period of two weeks or payment in lieu thereof. I am satisfied the complainant was not paid in lieu of the notice period of two weeks. I direct the respondent to pay the complainant compensation of €1000.00 equal to two weeks’ pay for the contravention of Section 4(2) of the Act.
CA-00039856-004
Claim under the Minimum Notice and Terms of Employment Act, 1973 that the complainant did not receive her contractual period of notice on the termination of her employment or payment in lieu thereof.
I am satisfied that the complainant did not receive one months’ notice or payment in lieu of notice on the termination of her employment. I find that her complaint is well founded. I direct the respondent to pay the complainant compensation of €1000.00 equal to two weeks’ pay in addition to the payment I directed above in complaint CA-00039856-003.
The total compensation for failure to give either statutory or contractual notice, or payment in lieu thereof, to be €2000.00 which is equal to four weeks’ pay to the complainant as provided for in her contract of employment.
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Dated: 19th August 2021
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Redundancy Payment Notice period Statutory Notice Contractual Notice Payment in lieu of Notice |