ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030715

Parties:

	Complainant	Respondent
Parties	Elena Gabriela Tarnauceanu Ilinca	Whw Brothers Focus Limited Colossus Casino

	Complainant	Respondent
Parties	Elena Gabriela Tarnauceanu Ilinca	Director Sean He

Representatives

Self-Represented

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00039098-001	07/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00039098-002	07/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under Protection of Employment Act 1977 as amended.	CA-00039098-003	07/08/2020

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice and Terms of Employment Act 1973	CA-00039098-004	07/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act 2015(Public Holiday Entitlement)	CA-00039098-005	07/08/2020

Date of Adjudication Hearing: 10/06/2021

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

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.

Summary of Complainant’s Case:

I was informed by the company that they were ceasing to trade on or about the 24th of June 2020. However, despite requesting my statutory redundancy, no payment has been received to date. My employer has failed or refuses to complete the RP 50; the form filled in by the employer when a redundancy situation arises, which is signed by the employer and the employee and sent to the Department of Social Welfare. I also filled in the RP 77 that is required to be sent to my employer when they have failed to pay statutory redundancy, without any success.

Summary of Respondent’s Case:

The respondent company as represented by their Director stated that they were insolvent had incurred several hundred thousand euros in loss and 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 of June 2020. The employer failed to address why it 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.

Findings and Conclusions:

CA-00039098-001

Statutory Redundancy Entitlement:

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:

1. Start date: 13th January 2016

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

3. The last wages received were on 14th March 2020.

4. Annual leave Payment was made up to the 14th of March 2020.

5. Date of lay-off 14th March 2020

6. Date of termination by employer: 24th June 2020

7. Contract date of termination including 2 weeks’ notice: 7th of July 2020

8. Gross weekly wage: €347.00

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 13th of January 2016 to the time of temporary lay-off on or about the 14th of March 2020 which is 4 years and 2 months.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess ” days shall be credited as a proportion of a year.

Statutory Redundancy is calculated as follows:

Number of years’ service: 4.166

Weeks due under the scheme: 4.166 (2 weeks per year plus 1 bonus week)

Wage ceiling under Scheme: €600 per week

Statutory redundancy entitlement: 9.166 weeks x €347 gross weekly wage = €3180.60

I determine that the complainant is entitled to statutory redundancy amounting to €3180.

CA-00039098-02

This matter has been dealt with in CA-00039098-01

CA-000039098-03

Section 6 of the Protection of Employment Act 1977 states:

(1) For the purpose of this Act, ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is —

(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees,

The respondent company employed about 30 employees and all have been terminated on or about the same date; arising from their employment being terminated due to redundancy. A collective redundancy has taken place. However, no consultation has taken place with the employee’s representative. As a collective redundancy was occurring; the employer was obligated under section 9(3) of the Act to:

(3) Consultations under this section shall be initiated at the earliest opportunity and in any event at least 30 days before the first notice of dismissal is given.

The first notice of dismissal was given on the 24th of June 2020 and also this was the date of dismissal. Therefore, no consultation has taken place as required under the Act. The claim is well founded.

CA-00039098-04

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 €347 x 2= €694

In an email to the company director Mr Sean He dated 7th July 2020; the complainant asked what notice she would be receiving, and the company responded on the 10th July 2020 to say as they were insolvent, no notice would be paid.

On the 17th of July 2020 the complainant writes to the company and states:

“I am entitled to 6 weeks’ notice pay along with any public holidays and that I earned during the laid off period”

“Under Redundancy Payments Act 1967-2007, I’m requesting you, my employer, to pay me my Redundancy Lump sum, my notice and unpaid holidays for the first 13 weeks of temporary layoff.

On the 1st of August 2020 in an email to her employer she states: ‘Insofar as it suggests that my employment was terminated there was no consultation or notice or mention of redundancy.

CA-00039098-05

Section 21 of the Organisation Working Time Act 1997 as amended as detailed at Schedule 3 of the Act provides for entitlement to Public Holidays for the first 13 weeks of layoff. Layoff occurred on the 14th of March 2020 and the employment was terminated on the 24th of June 2020. The Public Holidays that fall due during this 13-week period are:

1. St Patricks Day

2. Easter Monday

3. May Day

4. June Public Holiday

Gross weekly pay is €347, and the Public Holiday entitlement is 1/5th = €69.40 x 4=€277.60

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

CA-00039098-01 Statutory Redundancy Payment:

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

1. Start date: 13th January 2016

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

3. The last wages received were on 14th March 2020.

4. Annual leave Payment was made up to the 14th of March 2020.

5. Date of lay-off 14th March 2020

6. Date of termination by employer: 24th June 2020

7. Contract date of termination including 2 weeks’ notice: 7th of July 2020

8. Gross weekly wage: €347.00

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

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:

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 4.166 years.

CA-00039098-02

This matter has been dealt with in CA-00039098-01

CA-00039098-03 Consultation Protection of Employment Act 1977 as amended:

The first notice of dismissal was given on the 24th of June 2020 and this was the date of dismissal. Therefore, no consultation has taken place as required under the Act. The claim is well founded. The employer unilaterally acted without meeting any of their statutory obligations to consult. There are no mitigating factors provided by the employer and despite being able to correspond regarding dismissal; they ignored their obligations to commence the consultation process. The company has breached all requirements as set out under the Act concerning consultation. In those circumstances and having regard to Article 8 subsection 2 of DIRECTIVE 2002/14/EC:

2. Member States shall provide for adequate sanctions to be applicable in the event of infringement of this Directive by the employer or the employees' representatives. These sanctions must be effective, proportionate and dissuasive.

The Act states:

11A. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 9 or 10 shall do one or more of the following, namely —

(a) declare that the complaint is or, as the case may be, is not well founded,

(b) require the employer to comply with the provision of the Act of 1977 concerned and, for that purpose, to take a specified course of action,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 .

The claim is well founded and award 4 weeks amounting to €1388 having regard to the obligation under the directive that the award is both proportionate and dissuasive.

CA-00039098-04 Minimum Notice Entitlement:

Under the Minimum Notice and Terms of Employment Act 1973 the complainant is entitled to redress as follows:

12. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention..

The complainant is entitled to 2 weeks’ notice.

The claim is well founded, and I direct the employer to pay the complainant 2 weeks’ pay in lieu of notice amounting to €694

CA-00039098-05 Public Holiday Entitlement:

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 €69.40= €277.60.

Dated: 16th November 2021

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Insolvent company-entitlement to statutory redundancy-minimum notice-public holiday pay-collective redundancy-consultation.