ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027951

Parties:

	Complainant	Respondent
Parties	Leia Smith	Justin James Enterprises Ltd

Representatives

Self Represented

Karen Egan

Complaint(s):

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-00035743-001	17/04/2020

Date of Adjudication Hearing: 19/11/2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Respondent closed the Café and left all staff go and the Complainant was not paid redundancy.

Summary of Complainant’s Case:

The Complainant was employed as a Waitress from July 15th 2016 to March 8th 2020 when the business suddenly closed. The Complainant received a text at 10.30pm on March 7th 2020 from the Owner that the shop was closing effective immediately.

The Complainant earned approximately 260 Euros per week gross for a 25 hour week

The Complainant did not receive any redundancy pay due to the closure of the business.

Summary of Respondent’s Case:

The Respondent Representative advised the Hearing that the business had substantial tax and credit bills from July 2019 onwards and could not meet their debts. The Respondent put the business on the market for sale in November 2019 and had some interest but could not sell the business. The Respondent had done a deal with the Revenue to hold off on its debts, but this was called in by Revenue on March 6th 2020 and the Respondents Accountant advised the Respondent to close the business to avoid incurring any further debt. The business closed on March 8th 2020. The Respondent advised that the agreed a redundancy situation had occurred but it could not pay the Complainant the redundancy payment they were due as the Business had no funds.

Decision:

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the Complainant was made redundant and did not receive a redundancy payment.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows:

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 years ending 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 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 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) the fact that the requirements of that business 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, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Section 39 of the Redundancy Payments Acts 1967 – 2020 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Based on the evidence of the Parties I allow the Complainants appeal and I award her statutory redundancy on the following basis Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.” Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement; July 15th 2016

Date of Reckonable Service for Redundancy Payment Ceasing on: March 8th 2020

Gross Weekly Wage: 260 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

I allow the Complaints Appeal.

Dated: 08/12/2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy