Complainant

Respondent

Parties

Amrish Sumarath

Cars on Line (Partnership of Dave Mulder & Gary Browne)

Complainant

Respondent

Anonymised Parties

A Mechanic

A Car Retailer

Representatives

Not represented

Gerry Doyle, Accountant

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-00038406-001

28/06/2020

The complainant is a mechanic and he worked for the respondents, a partnership engaged in selling cars online, from April 2006 until he was laid off in March 2020.  He was paid €500 per week.  In June 2020, he was informed that the company was closing and that his job was redundant, but that there were no funds to cover a redundancy payment.  Apart from his entitlement to a redundancy payment, the complainant claims that he got no notice of dismissal and no pay in lieu of notice and that he was not paid for holidays that he had not taken when his employment was terminated.

In his submission to the WRC, the complainant said that in March 2020, he was told to take a week’s holidays and then to apply for the Pandemic Unemployment Payment, meaning that he was laid off.  On June 3rd he said that he went to a meeting in his job and he was told by one of the partners that the company was closing, that all the jobs were gone and that there was no money to pay them a redundancy lump sum.  He said that he was told that the company’s accountant would “sort out the redundancy paperwork.”  He got nothing in writing to confirm that he had been made redundant.

Following this meeting, the complainant said that he continuously phoned, texted and emailed the accountant and the owners asking them to complete his redundancy form, and asking for his holiday and notice pay.  He said that the accountant replied by text message a few times to say that he will contact him to arrange a meeting, but, up to the date that he submitted this complaint, a meeting had not taken place.

In March 2020, when the complainant logged on to his online Revenue account, he said that tax had not been returned for him since January 2019, but that this was resolved by the time he submitted this complaint.  He also said that he got no payslips since that date, but that he also received his payslips and he was able to claim the Covid unemployment payment.  At the hearing, the complainant said that, in July 2020, he started in a new job in a warehouse.     

At the hearing, Mr Doyle said that the dealership closed in March 2020 due to the Covid pandemic.  In October, the premises where it operated was handed back to the landlord.  The company is currently not trading and there is no work for the complainant.

Use of the Complaint Form

Under section 39 of the Redundancy Payments Act 1967, the complainant claimed an entitlement to a redundancy payment.  Under the same heading of the Redundancy Payments Act, he also claimed that he got no notice of the termination of his employment and that he was not paid in lieu of holidays not taken in 2020.  He did not specifically select the sections on the complaint form under which to make complaints about unpaid notice and holidays, but he included these matters under his complaint regarding the non-payment of a redundancy lump sum.

As has been established by the High Court in the case of Clare County Council v The Director of Equality Investigations and Others [1], to have a complaint adjudicated on, it is not essential to fill in a complaint form.  The case under consideration there was a complaint under the Equal Status Act, which could have been submitted using an EE.1 form.  Referring to the form, Mr Justice Hedigan stated as follows:

“The respondent has drafted the EE.1 forms for complaints.  Complainant’s however are not obliged to use them.  The Minister has not issued directions regarding the form to be used and applicants can submit complaints in any format they see fit.  In the Louth VEC v. The Equality Tribunal [2009] IEHC 370 McGovern J. observed as follows at paragraphs 6.2 and 6.3:-

“I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint.  If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint ….. remains the same."

“It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken back by surprise or alternatively given adequate time to answer there can be no injustice therein.”

While the complaints under consideration here are generally submitted using a different form, the decision of the High Court is still relevant.  It is not necessary to fill in a form to submit a complaint.  This complainant filled in a form, although not with 100% accuracy.  I am satisfied that he has clearly set out his complaints regarding redundancy, notice and holidays on the complaint form that he submitted to the WRC on June 28th 2020.  I am further satisfied that the respondent was on notice of all three complaints and that no unfairness arises from the fact that the complaints regarding notice and holidays were not submitted under the headings of the Minimum Notice and Terms of Employment Act 1973 and the Organisation of Working Time Act 1997.

Complaint under the Redundancy Payments Act 1967

Section 7 of the Redundancy Payments Act 1967 sets out five specific circumstances in which an employee may be entitled to a redundancy payment, the first of which is:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose 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,”

From the evidence of the respondent’s representative at the hearing, it is apparent that the complainant’s employer has ceased operations in the place where he was employed and the premises has been handed back to the landlord.  The complainant’s job is therefore redundant.  As he has completed more than two years of service, he is entitled to a redundancy payment.

Complaint under the Minimum Notice and Terms of Employment Act 1973

The complainant said that he was informed on June 3rd 2020 that there was no more work for him and that the company was closing.  He considered himself to have been dismissed on that day, and he began to look for another job.  He did not receive written notice of the termination of his employment and he was not paid in lieu of notice.

I find that, as he had been employed by the respondent for more than 10 years, he was entitled to six weeks’ notice of the termination of his employment due to redundancy.

Complaint under the Organisation of Working Time Act 1997

When the company closed in March 2020 at the onset of the Covid pandemic, the complainant said that he was instructed to take one week’s holidays and then to claim the Pandemic Unemployment Payment.

Based on his service to June 3rd 2020, the complainant was entitled to 8.5 days’ holidays in respect of the leave year 2020.  He said that he took one week’s holidays in March, leaving 3.5 days’ holidays not taken.

Section 23(1) of the Organisation of Working Time Act 1997 sets out the entitlements of employees at the cessation of their employment:

(1) (a) Where -

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, 

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. 

I find that the complainant was entitled to pay for 3.5 days of annual leave not taken at the termination of his employment.

Redundancy Payments Act 1967

In accordance with section 7 of the Redundancy Payments Act 1967, I allow the complainant’s appeal.  Subject to his PRSI contribution status, he is entitled to a statutory redundancy payment based on his service from April 10th 2006 until June 3rd 2020.

Minimum Notice and Terms of Employment Act 1973

I find that, by not giving him notice of the termination of his employment, and by not paying him in lieu of notice, the respondent has contravened section 4 of the Minimum Notice and Terms of Employment Act 1973.  I direct the respondent to pay the complainant €3,000, equivalent to six weeks’ pay.

Organisation of Working Time Act 1997

I find that the complaint regarding the non-payment of holiday pay is well founded.  I direct the respondent to pay the complainant €350 in respect of 3.5 days’ holidays due to him when his employment was terminated on June 3rd 2020.

As these payments are in the form of an award for the infringement of an employee’s rights, in accordance with section 192A of the Taxes Consolidation Act 1997, the total amount of €3,350 is not subject to statutory deductions.

Redundancy, minimum notice, holidays