Complainant

Respondent

Parties

Liam  Mahoney

John Donovan trading as Donovans of Rathgar.

Representatives

 Lavelle Partners LLP

 In person

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-00041936-001

11/01/2021

This complaint was submitted to the Workplace Relations Commission on the 11thJanuary 2021 and relates to outstanding redundancy entitlements. The named respondent on the complaint form was “John Donovan formerly A.T. Donovan Limited.” The complainant was employed by this legal entity from June 2006 until the company was dissolved in 2014. The complainant continued in his employment from 2014 until January 2020 and was employed since that time by “John Donovan trading as Donovans of Rathgar.” This adjudication decision reflects the correct name of the respondent which was agreed by both parties.

The complaint was initially to be heard on 27th May 2021. The respondent indicated that he was unable to attend on that date. The matter was adjourned, and the adjudication hearing was reconvened on 6th July 2021 and was held remotely using the Webex platform. Neither party experienced any technological difficulties at the hearing. The respondent was also facilitated with additional time to submit a response to the complainant’s submission and to put forward any other points he wished to make. The respondent sent in additional documentation on 13th July 2021 which was copied to the complainant’s representative.

The complainant contends that he was employed by the limited company at the Butcher’s Shop from 2006 until it was dissolved in 2014 and his employment transferred to the respondent and continued at that location until the Butcher’s Shop closed permanently on 11th January 2020.

The complainant stated that his employer accepted at the time of the closure that he was entitled to a redundancy lump sum payment and assured the complainant that this payment would be made to him in due course. The complainant stated that he was never paid his redundancy entitlements and is seeking payment of same.

The respondent contends that the complainant is not entitled to a redundancy lump sum payment as the respondent sourced alternative employment for the complainant at his Brother’s Butcher’s shop. The respondent stated that the complainant commenced in his new employment on or about the 18th January 2020 and remains employed to date. The respondent further added that he paid the complainant one week’s pay for the week 11th - 18th January 2020 to ensure he would not be out of pocket while waiting to start his new position.

Timing of the complaint

The complainant was notified on 4th January 2020 that his employment would end on 11th January 2020 when the Butcher’s Shop closed permanently. At that point in time the complainant had approximately 13.5 years ‘continuous service and would have been entitled to six weeks’ notice of the termination of his employment. While there is no complaint relating to Minimum Notice entitlements, the actual date of dismissal would have been 15th February 2020. (six weeks after the notification) On that basis the complaint as submitted on 11th January 2021 is within the 12-month period required by the legislation.

Substantive issue

In relation to the termination of the complainant’s employment, it is not disputed that the business closed on 11th January 2020 and the complainant was paid one week’s pay for the week following his termination prior to commencing with his new employer on or about 18th January 2020. The parties are in dispute in relation to what this payment actually related to. The complainant asserts it was one week’s notice whereas the respondent contends it was simply a goodwill payment to ensure the complainant and his family were not without payment for the following week. While nothing turns on this point, I accept the good intentions of the employer in relation to the payment made to the complainant.

In relation to the complainant’s redundancy entitlements, the respondent stated that he sourced alternative employment for the complainant with his brother who also owned a Butcher’s Shop and the complainant commenced in his new employment on or about 18th January 2020. The respondent was of the view that in circumstances where the complainant secured alternative employment, he was not entitled to be paid a redundancy lump sum payment.

The Applicable Law

Section 7 of the Redundancy Payments Act, 1967 at relevant partprovides 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…..

It is clear that the complainant’s employment ended by reason of redundancy in accordance with Section 7(2)(a) of the Redundancy Payments Act, 1967. The fact that the respondent assisted the complainant in sourcing alternative employment in a sperate legal entity does not change the complainant’s entitlement to a redundancy payment.

Having considered the submissions of both parties and all of the documentation submitted, I am satisfied that the complaint is well founded, and the complainant is entitled to a redundancy payment.

I find the complaint is well founded. The complainant is entitled to a redundancy payment as follows:

Date of commencement of employment of employment: 6th June 2006

Date of cessation of employment: 15th February 2020

Gross weekly rate of pay: €495.00

The entitlement to a redundancy payment is based on the complainant having been in insurable employment within the meaning of the Social Welfare Acts for the relevant period.

Redundancy entitlements