Complainant

Respondent

Anonymised Parties

An Employee

A Florist

Representatives

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-00039970-001

21/09/2020

The complainant commenced employment with the respondent entity in 1997 and over the intervening years her employment transferred over another form of the company before being vested in the respondent when the limited company was established in 2019.  Throughout the period she was employed by the respondent on the same terms and conditions.

The respondent did not issue any payslips or contract and the complainant provided evidence of her employment with the respondent at the hearing by presenting documentation issued by the Revenue Commissioners.

The respondent did not take part in the remote hearing of this case, although given that there was contact with the WRC in the week prior to the hearing, I am satisfied that the respondent was on notice of the hearing taking place.

The complainant submitted that she was employed on a part-time basis by the owner of the florist on the 7 September 1997, as per her P60.  She continued to work for the florist when the business was taken over by the original owner’s daughter and thereafter when the business was taken over by her son (the grandson of the original owner).  The respondent company was established as a limited company in 2019 and the complainant and a witness who gave evidence to the hearing were employed on the same terms and conditions throughout the different iterations of the company.

The complainant submitted that the respondent did not provide contract of employment or payslips to employees.  This contention was supported by the evidence given by a witness who was also an employee of the respondent.

The complainant submitted that she was rostered to attend work on Friday 13 and Saturday 14 March 2020 but received a phone call on 11 March saying that she was being let go as the had no funds.  She did not receive and notice or redundancy payment. The complainant’s version of events was corroborated by the witness who was working for a short time on 11 March but was also told that he was being let go with no notice or redundancy payment on that date.

The respondent did not attend the hearing of this matter.

The entitlement to a redundancy payment is outlined in Section 7 of the Redundancy Payments Acts 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,

(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if —

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6of the Protection of Employment Act 1977,

(b) the dismissals concerned were effected on a compulsory basis,

(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by —

(i) other persons who are, or are to be, directly employed by the employer, or

(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees. ]

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(4A) In ascertaining, for the purposes of subsection (2) (c), whether an employer has decided to carry on a business with fewer or no employees, account shall not be taken of the following members of the employer ‘ s family —

father, mother, stepfather, stepmother, son, daughter, adopted child, grandson, granddaughter, stepson, stepdaughter, brother, sister, half brother, halfsister. ]

(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Having considered the written and oral evidence of the complainant taken together with the evidence of the witness, I find that she was an employee of the respondent and it is clear that her employment ceased in accordance with Section 7(2)(a) of the Acts with effect from 13 March 2020. Accordingly, I find she is entitled to a redundancy payment in accordance with the Social Welfare Acts.

Having considered this matter and in accordance with my findings above, my decision is to allow this appeal. The complainant is entitled to a redundancy payment as follows:

Date of commencement of employment: 7 September 1997

Date of cessation of employment: 13 March 2020

Gross weekly rate of pay: €105.00

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

Redundancy, payment