Complainant

Respondent

Anonymised Parties

Café Worker

Café Owner/Operator

Representatives

 Self

 No attendance

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-00035652-001

09/04/2020

The Respondent terminated the employment of the Complainant on 26 November 2019 when the café where she worked was closed. The complaint follows by a failure of the Respondent to pay redundancy to the Complainant and this is in effect an appeal against a refusal to pay redundancy.

This was a virtual hearing held remotely.

The Complainant was employed at  the café from 29 July 2016 to 27 November 2019. During that time the name of her employer changed but she worked continuously at the same job under the direction and control of the same named person. Her average hours of work were 36 per week and she was paid €360 per week. In November 2019 she went on sick leave for surgery. On 27 November she received a text from the Respondent telling her the business was closed and thanking her for her service. A fellow worker also told her that on the instruction of the Respondent she had closed the business that morning. She downloaded the redundancy form and sent it to an address she had for the Respondent by registered post. There was no reply and no further contact from him about redundancy although she did text him once or twice.

This is the second of two complaints against the respondent for a refusal to pay redundancy-the first of which was heard in February 2021. The named Respondent did contact the WRC prior to the February hearing stating that he could attend that hearing if it was postponed to the following week. When the WRC attempted to service the notice of the current case, the email was ‘bounced back’ from the email address previously used to contact the Respondent. The phone number previously used by the WRC to contact him was no longer operating. As I am satisfied that every reasonable effort was made by the WRC to notify the Respondent of the hearing using the means which were successful in a previous case and using the only known contacts for the Respondent, the hearing proceeded in the absence of the Respondent.

Based on the available evidence and taking account of information provided by the Respondent prior to the hearing in February, the conclusion is that the Complainant was in continuous employment from 2016 to 2019 and that, while the name or legal entity of her employer may have changed during that period, she has more than the two years’ service in the employment required to qualify for statutory redundancy. The applicable parts of Section 7(1) and (2) of the Redundancy Payments Act (1967-2015) state:

(1)    An employee, if he is dismissed by his employer by reason of redundancy …shall, subject to this Act, be entitled to the payment of moneys which shall be known… as redundancy payment provided-

(a)    he has been employed for the requisite period ,and

(b)    he was an employed contributor in an employment which was insurable….

(2)    For the purposes of subsection (1) an employee who is dismissed shall be taken to have been 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 in the place where the employee was so employed, or…’

Based on the evidence, there was a genuine redundancy in this case when the business of the Respondent ceased, and the employment of the Complainant was terminated by reason of redundancy.

CA-00035652

The appeal under Section 39 of the Redundancy Payments Act 1969-2014 is allowed. The Complainant is entitled to a redundancy payment based on the following facts:

Start Date: 30 July 2016

Termination Date: 27 November 2019

Gross weekly wage: €360

The Decision is made subject to the Complainant having been in insurable employment during the stated period.

Statutory Redundancy Pay