Complainant

Respondent

Parties

Ashley  Evers

Whw Brothers Focus Limited Colossus Casino

Representatives

  Self- represented

 Self -Represented

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-00039083-001

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039083-002

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice and Terms of Employment Act 1973

CA-00039083-003

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act 2015(Public Holiday Entitlement)

CA-00039083-004

07/08/2020

The complainant worked at the Casino and due to the Pandemic; the casino remained closed accumulating very significant losses that ultimately led the business ceasing to trade as it had become insolvent. However,  the company has not been wound up as required by law and in turn that has given rise to this complaint so that the employee can claim their redundancy entitlements.

A transfer of undertakings occurred on about the 25th of May 2018 and service and other benefits continued to be paid as previously. The Casino temporarily closed on the 14th of March 2020 and on the 24th of June 2021 the complainant’s employment was terminated arising from an inability of the company to meet their bills.

The Complainant was informed by the company that they were ceasing to trade on or about the 24th of June 2020. However, despite requesting statutory redundancy, no payment has been received to date. The employer has failed or refuses to complete the RP 50; the form filled in by the employer when a redundancy situation arises and when signed by the employer and the employee is sent to the Department of Social Welfare. The complainant also filled in the RP 77 that is required to be sent to the employer when they have failed to pay statutory redundancy.  The employee has received no notice, no public holiday entitlement and no statutory redundancy.

The respondent company as represented by their Director stated that they were insolvent had incurred several hundred thousand euros in loss and the company has no funds to pay redundancy. The employer confirmed that the business had ceased trading and that the complainant’s employment had ceased on or about the 24th June 2020.  The employer failed to address why the company failed to complete the statutory forms; other than to say that no resources were in place to do so, based on the fact of  chronic insolvency and inability to pay.

Section 7(2) of the Redundancy Payments Act, 1967, states:

(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,

Having heard the evidence and the fact that the respondent employer agreed that the complainant had been dismissed as the business has ceased trading and/or intends to cease trading and to carry on business in the place where the employee was employed and that her work has ceased, I am satisfied that the complainant was dismissed by reason of redundancy and is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967-2014 based on the following facts established on the evidence given under oath and documentary evidence submitted:

1.       Start date: 28th of August 2015

2.       Date of Lay-Off 14th of August

3.       Date of notice of termination: 24th June 2020

4.       Date of termination by employer 24th June 2020

5.       Legal date of termination includes minimum notice of 2 weeks which means the effective date of termination is the 7th of July 2020

6.       Gross weekly wage: €338.00

In addition to redundancy the complainant also sought minimum notice:

on the 3 July 2020 I emailed you looking for the following information:

·       Official finish date in Colossus Casino

·       Date when my last payslips and payments will be processed

·       Details of my years of service

·       Details of my payslips

·       Details of your accountants/liquidators/solicitors

·       details who will be dealing with the wind up of the company.

·       When can I expect to receive a reference from the company.

·       If the company is paying for the notice period

She also writes on the same day that she is entitled to:

• notice given.

I am also aware that I'm entitled to 2 weeks’ notice before my employment termination .So I'm not sure that the 24th June 2020 is correct as my end of employment date. I was notified that there was a problem with the business reopening on this date but not notice given .I also know that this 2 weeks and any public holidays and holidays that I earned during the lay-off  is still owed to.

Public Holiday entitlement accrues during lay-off; however, annual leave entitlement does not accrue during lay-off.

The complainant is entitled to statutory notice based on years of service and as the period of continuous service is less than 5 years she is entitled to 2 weeks’ notice.

CA-00039083-001

The complainant under section 39 of the Redundancy Payment Act 1967 as amended is well founded and the complainant is entitled to a redundancy payment based on the following facts:

1.       Start date: 28th of August 2015

2.       Date of Lay-Off 14th of March 2020

3.       Date of notice of termination: 24th June 2020

4.       Date of termination by employer 24th June 2020

5.       Legal date of termination includes minimum notice of 2 weeks which means the effective date of termination is the 7th of July 2020

6.       Gross weekly wage: €338.00

The award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

8. During, and only during, the 3 year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service —

 (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on 28th August 2015 to the time of temporary lay-off on or about the 14th of March 2020 which is 4 years 6 months.

CA-00039083-02

This matter has been dealt with in CA-00039083-01.

CA-00039083-03

The complainant’s employment was terminated on the 24th of June 2021 without receiving statutory notice. Under the Minimum Notice and Terms of Employment Act 1973 the complainant is entitled to:

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks

Payment in lieu of notice is 2 weeks gross pay=€676

CA-00039084-04

The claim is well founded, and the complainant is entitled to payment by the employer for 4 Public Holidays that fell during the first 13 weeks of layoff which amounts to 4 x €67.60=€270.40

Statutory Redundancy-Minimum Notice-Public Holidays