Complainant

Respondent

Parties

Janice  Lacey

Lisa McEvoy Little Acorns

Complainant

Respondent

Anonymised Parties

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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-00039419-001

28/08/2020

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

CA-00039419-002

28/08/2020

The Complainant was employed by the Respondent as a Pre-School Assistant from 10th March 1997, until her employment was terminated by the Respondent on 3rd September 2018.  The Complainant submitted complaints under the Redundancy Payments Acts, 1967 alleging that she did not receive any redundancy payment, and that she did not receive proof of her employer’s inability to pay redundancy when her employment was terminated.

The Respondent was a Creche/Pre-school. The Respondent confirmed that the Complainant had not received redundancy payment when her employment was terminated but advised that the termination was due to the closure of the business, which the Respondent contended was no longer financially viable.

Preliminary Issue:

The Complainant’s Representative raised the issue of the time limit for bringing a complaint under the Redundancy Payments Acts, 1967 and confirmed that the Complainant was seeking an extension of that time limit due to extenuating circumstances. 

CA- 00039419- 001

The Complainant’s Representative outlined that she was representing the Complainant in a personal capacity and that she and the Complainant wished to point out that although this claim had been referred to the WRC their approach would not be an adversarial one.  She acknowledged that the relationship between the Complainant and the Respondent had not just been one of employer/employee, but that a long-term friendship had existed between the parties.  She further acknowledged that the Respondent had been through a difficult time with the closure of her business. 

The Complainant’s Representative submitted that the Complainant had worked with the Respondent as a Pre-school worker from March 1997 until her employment was terminated on 3rd September 2018 and that the termination was due to the closure of the business.  The Complainant’s Representative submitted that the Complainant was not aware of her redundancy entitlement when her employment was terminated in August 2018, nor did her employer advise her of her rights in this regard.  She submitted that when the Complainant took up other employment her entitlements were brought to her attention by her new colleagues.  The Complainant submitted that she had made contact with the Respondent at that time to query the matter with her and that the Respondent had stated that she was not entitled to redundancy payment but that she would check this out further.  The Complainant submitted that the Respondent later reverted to her to say that she had been advised that the Complainant was entitled to redundancy payment and that even if she was not in a position to pay the amount due, she should complete relevant forms and that the state would make the payment.  The Complainant submitted that the Respondent advised her that she would send in the forms and so the Complainant was under the impression that the matter was being dealt with appropriately.

The Complainant’s Representative drew attention to copies of text messages between the Complainant and the Respondent which had been submitted by the Complainant.  She submitted that those messages demonstrated that the Complainant was actively seeking and receiving assurances from the Respondent that matters were being processed appropriately.  The Complainant also submitted that she was dealing with a personal matter at the time which hampered her ability to pursue the matter more vigorously, and that she also assumed that matters were delayed due to Covid-19 related lockdowns etc.  In these circumstances the Complainant was delayed in submitting a case to the WRC within the timeline and so she submitted that she was seeking an extension of that timeline.  The Complainant’s Representative submitted that the Complainant was entitled to the statutory redundancy lump sum payment and that there was reasonable cause for the delay in referring the matter to the Workplace Relations Commission.  In these circumstances she asked that the Adjudicator grant an extension of the time limit for the case and uphold the Complainant’s case that she was entitled to receive statutory redundancy payment.

CA- 00039419- 002

The Complainant submitted that after she had raised the matter of her entitlement to redundancy payment with the Respondent the Respondent advised her that she would have the requisite forms submitted to secure her entitlement to statutory redundancy.  She submitted that there was on-going communication between her and the Respondent in relation to the processing of the paperwork which led her to assume that all appropriate steps had been taken to address her redundancy payment.  She advised that she did not receive any formal notification of her entitlement to redundancy, nor did she receive any written confirmation of the Respondent’s inability to pay her the relevant entitlement.

CA- 00039419- 001

The Respondent confirmed that her business had closed in September 2018 due to insufficient numbers attending the pre-school. She advised that the business had been in decline for a number of years and that the numbers enrolled for Autumn 2018 were so low that it was not viable for the business to remain open.  She acknowledged that at the time of the closure she was not aware of the Complainant’s entitlement to redundancy payment.  She further advised that, when the Complainant made contact with her in that regard, she made enquiries of her accountant who confirmed the entitlement.  She acknowledged that there had been on-going text communication between her and the Complainant in relation to the payment and that she had understood that the accountant was addressing the matter and had communicated this to the Complainant.  She confirmed that her accountant had protracted discussions/negotiations with the Revenue Commissioners regarding outstanding taxes and that she was under the impression that both matters would be resolved simultaneously.  The Respondent expressed her disappointment that this had not been the case and regretted the impact of this on the Complainant.

The Respondent advised that the period surrounding the closure of the business and the resulting protracted discussions with Revenue had been very stressful for her and that while she acknowledged the difficulties her lack of understanding had caused the Complainant, this had never been her intention.  The Respondent acknowledged the long and positive working relationship which had existed between the parties and the strong friendship that had developed over the years.

The Respondent confirmed that she had no objection to the extension of the time limit relating to the case.

CA- 00039419- 002

The Respondent confirmed that she did not provide the Complainant with written confirmation of her entitlement to redundancy payment, as she was not aware of that entitlement at the time of the closure of the business in September 2018.  She also confirmed that when she clarified matters with her accountant she understood that the redundancy issue was “tied up” with taxation issues being dealt with between her accountant and the Revenue Commissioners and she so advised the Complainant.  The Respondent confirmed that, in these circumstances, she did not provide written confirmation to the Complainant of her inability to pay her statutory redundancy entitlement.

The Respondent confirmed, at the hearing, that the business had no funds to pay the redundancy.

CA- 00039419- 001

I noted the content of submissions and supporting documentation provided and I noted the oral evidence given by both parties at the hearing.  I noted that there was no dispute between the parties in relation to the facts presented by the Complainant i.e., that neither party was aware of the Complainant’s entitlement to redundancy payment at the time of the closure of the business, that the Complainant did bring her entitlement to the attention of the Respondent as soon as she became aware of that entitlement and that she continued to communicate with the Respondent in relation to her entitlement.  I reviewed the text messages submitted and noted that the communication occurred throughout the period from August 2018 up to November 2019. I noted, in particular, the text message from the Respondent to the Complainant in April 2019 where she confirmed “paper work gone in” and I noted the Respondent’s explanation that she was in the process of resolving revenue matters which she believed would result in the payment of the redundancy entitlement to the Complainant.  I accepted the Respondent’s bona fides in relation to her confusion surrounding this matter.

I noted that the Complainant lodged her complaint with the Workplace Relations Commission on 28th August 2020.  I further noted the position of the Complainant that she had a distressing personal matter during this time and that she did not continue to pursue the matter as she assumed delays were related to the Covid-19 pandemic. 

I noted that Section 24 of the Act provides that “an employee shall not be entitled to a lump sum” unless they have referred their complaint within 52 weeks of the date of termination of employment.  I noted that the act further provides that “where an employee who fails to make a claim for a lump sum within the period of 52 weeks…makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.”

Based on the evidence of both parties regarding their initial lack of understanding of the Complainant’s entitlement to redundancy payment and based on the subsequent confusion which arose between the Respondent and her accountant in relation to taxation and redundancy matters I find that the Respondent communication to the Complainant caused the Complainant to believe that an application had been made, on her behalf for statutory redundancy payment.  Based on the evidence provided by the Complainant in relation to personal matters during this time and her explanation that she assumed delays in processing her entitlement were due to the pandemic I consider that there was reasonable cause for the delay in not submitting a claim within the 52-week time limit.

Having heard the evidence and the fact that the Respondent agreed that the Complainant’s employment was terminated due to closure of the business I am satisfied that the Complainant’s employment was terminated by reason of redundancy and is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967-2014.

CA- 00039419- 002

I noted that there was no dispute between the parties in relation to the circumstances surrounding the Complainant’s redundancy, nor in relation to the confusion which gave rise to this claim.  I noted that there was also no dispute between the parties that written confirmation of the Respondent’s inability to pay the Complainant’s statutory entitlement had not been provided to the Complainant and I so find.

CA- 00039419- 001

Based on the findings outlined above in relation to the time limits pertaining to this case I have accepted that the Complainant did have reasonable cause for not submitting her claim within the initial 52-week time limit and therefore it is my decision to accept her case within the extended 104-week time limit as provided for in the Act.

Based on the findings in relation to the Complainant’s entitlement to statutory redundancy it is my decision that the Complainant’s case is well founded.  In these circumstances it is my decision that the Complainant should be awarded her statutory redundancy entitlement.

CA- 00039419- 002

Based on the findings above in relation to the failure to notify the Complainant of the Respondent’s inability to pay her statutory redundancy entitlement, it is my decision that this complaint is well founded.  In these circumstances the Respondent is instructed to co-operate with the Complainant in the provision of all necessary paperwork to enable her to claim a statutory redundancy payment.

Statutory redundancy