Complainant

Respondent

Anonymised Parties

A Complainant

A Transport Company

Representatives

none 

 none

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-00033852-001

17/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00033852-006

17/01/2020

The complainant was employed as a driver with the respondent from September 2012 until 31 December 2019.

CA-00033852-001 Redundancy

The complainant submitted that he was employed as a driver and worked for a minimum of 40 hours per week for the respondent.  He submitted that he was paid about €1000 for 3 weeks work.  He submitted that he was told that there would be no further work for him from the end of 2019 and did not receive any redundancy payment.

CA-00033852-06 Minimum Notice

The complainant submitted that he did not receive regular payslips and was not provided with a contract of employment.  He further submitted that he was promised that he would receive a final payment in relation to the redundancy but did not receive any monies.

CA-00033852-001 Redundancy

The respondent submitted that it let the complainant go at the end of 2019 as the company was being wound down.  The assets of the company were sold to another company on 4 January 2020.

The respondent submitted that as the complainant began to work for the other company he was not entitled to a redundancy payment.  He was offered a payment but wanted a different sum, however no monies were paid to the complaint.

CA-00033852-06 Minimum Notice

The respondent confirmed that payslips were not regularly given to the complainant but were available to him upon request.  All the paperwork was available from the company accounts upon request. The respondent suggested that the complainant only worked 24 hours a week over about three days but also confirmed that it did not keep any timesheets of attendance records for the applicant. His salary was €1200 per month after deductions. As above, he was offered a final payment but wanted a different sum, however no monies were paid to the complaint.

Both the complainant and respondent gave oral evidence as to the complainant’s rate of pay.  The respondent detailed that all payments were made through the Company’s Accountant in accordance with the appropriate legislation.  Arising from the information provided in written and oral evidence, and in the absence of a contract of employment or payslips for the complainant, I find that the complainants net salary, amounted to €300 per week for a 40-hour week after deductions.

CA-00033852-001 Redundancy

The respondent asserted that the complainant was not made redundant but that his employment transferred to his new employer (the company to which the assets had been sold to).  I note that the transfer of an employee is dealt with in Section 9 (3) of the Redundancy Payments Act, 1967 as follows:

(3) (a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if—

(i) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment,

(ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer,

(iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which—

(A) sets out the terms and conditions of the employee’s contract of employment with the new employer,

(B) specifies that the employee’s period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer,

(C) contains particulars of the service mentioned in clause (B), and

(D) the employee notifies in writing the new employer that the employee accepts the statement required by this subparagraph.

(b) Where in accordance with this subsection an employee is re-engaged by the new employer, the service of that employee with the previous employer shall for the purposes of this Act be deemed to be service with the new employer.

At the hearing, no evidence to support the existence of a transfer of employment was submitted, neither an outline of the consultations nor evidence of any documentation as outlined in the Act was produced to support the claim of a transfer of employment.  Section 7(2) of the Act states that

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,  

Having considered the written and oral evidence presented to me, I find that the complainant was dismissed by reason of redundancy.  Arising from this I also find that the complainant is entitled to a redundancy payment.

CA-00033852-06 Minimum Notice

I note from the written and oral evidence of both parties that the complainant was not provided with notice in relation to his dismissal, although it appears that some discussions took place as to the amount of notice due to the complainant, no minimum notice was paid to the complainant.  Section 4 of the Minimum Notice and Terms of Employment Acts 1973 to 2005 is instructive here.  Section 4 outlines that

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.

Accordingly, I find that the Act was contravened and that the complainant is entitled to Minimum Notice and that this should be in accordance with Section 4(2)(c) of the Act, i.e. four weeks’ notice given the complainant’s length of service.

CA-00033852-001 Redundancy

My decision is that the complainant was made redundant and is entitled to a redundancy payment, calculated in accordance with the rules laid down by the Department of Social Welfare.

CA-00033852-06 Minimum Notice

My decision is that the Act was contravened, and the complainant is entitled to Minimum Notice of four weeks’ pay – €1200, after deductions which should be paid to the appropriate authority, in accordance with the information given at the hearing.

Redundancy, rate of pay, minimum notice, redundancy payment