Complainant

Respondent

Anonymised Parties

Chef

Restaurant

Representatives

  Self

 Accounts Officer

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-00038574-001

07/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section Section 27 of the Organisation of Working Time Act, 1997

CA-00038574-002

07/07/2020

The complainant was employed by the respondent company from 15 June 2016 to a date in June or August 2020 when he was made redundant.  He had worked a forty-hour week and his gross pay per week was €640.00.  He claims he was not paid redundancy pay and outstanding holiday pay when his employment was terminated.

The complainant was employed as Head Chef with the respondent company.  He commenced employment on 15 June 2016.  He was placed on unpaid layoff by the respondent from 15 March 2020. 

The complainant received a text message on 10 June 2020 informing him that the respondent’s lease on the restaurant was not being renewed.  He did not receive formal notice of redundancy on that date. 

The complainant requested a formal statement of his position to provide to his bank.  He received a letter, dated 25 June 2020, signed by a director of the respondent.  The letter stated that the lease on the premises where the complainant had worked had expired and was not being renewed, and ‘therefore we have ceased his employment with us’.

The complainant did not receive a redundancy payment when his employment was terminated.  His claim is for the appropriate redundancy payment.  The complainant also claims he was not paid for outstanding holidays and public holidays due to him at the date of termination.

The respondent’s representative confirmed the complainant had been placed on a period of layoff on 15 March 2020.  She further confirmed that the respondent’s lease on the premises where the complainant worked had expired and was not renewed. The complainant had requested confirmation of his position on 18 June 2020.  A letter, signed by a director of the respondent, confirming that his employment had been ceased was sent to the complainant on 25 June 2020.

The respondent’s representative confirmed that the complainant had not been paid redundancy pay or outstanding holiday pay.  This had occurred as there was a problem with cash flow.

CA-00038574-001

Claim under the Redundancy Payments Act, 1967

The complainant was employed by the respondent company from 15 June 2016 to a date in June 2020.  As he did not receive formal notice of redundancy it was unclear to him what date his employment terminated.   When he contacted Revenue about his tax affairs he was still registered as an employee until 10 August 2020. 

I have reviewed the documents provided to me by the complainant and the respondent.  The only clear statement from the respondent that the complainant’s employment was terminated is contained in the letter dated 25 June 2020.  The complainant had received a message on 10 June 2020 stating that the lease on the premises was not being renewed but the complainant’s employment status was not mentioned. 

Section 2 of the Act provides the following definition:

“date of dismissal”, in relation to an employee, means—

(a) where his contract of employment is terminated by notice given by his employer, the date on which that notice expires,

(b) where his contract of employment is terminated without notice, whether by the employer or by the employee, the date on which the termination takes effect, and

(c) where he is employed under a contract for a fixed term, and that term expires without the contract being renewed, the date on which that term expires, and cognate phrases shall be construed accordingly;

I am satisfied that the complainant’s employment was terminated without notice and that the formal confirmation of termination of employment is contained in the letter, signed by the director of the respondent, dated 25 June 2020.  I find the complainant’s employment was terminated on 25 June 2020 by reason of redundancy.

General right to redundancy payment.

Section 7 of the Act, as amended provides the following concerning the right to redundancy payment:

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 yearsending 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 concernedthe 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), (c), (d), (e)…

I am satisfied that the complainant’s employment was terminated by reason of redundancy on 25 June 2020 and he was entitled to a redundancy payment in accordance with the Act.  I am satisfied that he was not paid a redundancy payment.

CA-00038574-002

Claim under the Organisation of Working Time Act, 1997

The complainant in his complaint form, received on 07 July 2020, stated in the narrative that he was due holiday pay.  This is a separate complaint to the claim for redundancy pay. 

Section 23 of the Act provides as follows:

Compensation on cesser of employment.

23.— (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.

The ‘leave year’ is defined in Section 2 of the Act as a year beginning on any 1st day of April.  The relevant year in this claim is 01 April 2019 to 31 March 2020.  The complainant was on lay-off from 15 March 2020 until the termination of his employment.  Entitlement to paid annual leave is provided for in Section 19 of the Act:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

As the complainant was on lay-off for the whole of the leave year 01 April 2020 to 25 June 2020 no annual leave accrues for that year. 

The outstanding leave due to the complainant for the relevant leave year was, at the date of termination, 9.5 days.  A complaint relating to annual leave must be submitted within six months of the end of the annual leave year (31 March 2020).  This complaint was received by the Workplace Relations Commission on 07 July 2020 and is therefore within time.  I find that the complaint in respect of non-payment for annual leave at the date of termination is well founded.

Section 21 of the Act sets out the entitlement in respect of Public Holidays and the Third Schedule deals with the exceptions mentioned in S. 21(5).   There is an entitlement to compensation for public holidays occurring within the first 13 weeks of lay-off.  A complaint relating to public holiday entitlement must be submitted within six months of the date of the contravention of the public holiday entitlement.  In this case four public holidays occurred during the period of lay-off.  St. Patrick’s Day, Easter Monday, May and June public holidays.  There are all within the six-month period prior to the complaint being submitted on 07 July 2020.  Section 23(2) provides for payment on termination of employment of public holiday entitlements.  I find that the complaint in respect of non-payment for four public holidays at the date of termination is well founded.

CA-00038574-001

Complaint under the Redundancy Payments Act, 1967

Having carefully considered the submissions I find that the complainant’s employment was terminated by reason of redundancy on 25 June 2020 and that he was not paid a redundancy payment in accordance with the Act.  Accordingly, I allow the complainant’s appeal and decide that the complainant is entitled to a statutory redundancy payment to be determined having regard to the following criteria:

Date of commencement: 15 June 2016

Date of termination: 25 June 2020

Gross weekly pay: €640.00

The award is made subject to the complainant having been in insurable employment within the meaning of the Act for the relevant period.

CA-00038574-002

Complaint under the Organisation of Working Time Act, 1997

Having carefully considered the submissions I find that the complaint in respect of non-payment for annual leave at the date of termination is well founded.  I direct the respondent to pay the complainant €1216.00 gross being the payment due for 9.5 days.

I find that the complaint in respect of non-payment for public holidays at the date of termination is well founded.  I direct the respondent to pay the complainant €512.00 gross being the payment due for 4 public holidays.

Redundancy Payment

Payment for Annual Leave

Payment for Public Holidays