Complainant

Respondent

Parties

Amanda  Fyles

Whw Brothers Focus Limited t/a Colossus Casino

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Company Director, Mr Sean He.

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-00039326-001

24/08/2020

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

CA-00039326-002

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00039326-003

24/08/2020

The Respondent company operates as a casino.

The Complainant was employed from 2nd July 2008 until 24th June 2020 as a Poker Manager, she worked 22 hours per week for which she was paid a gross weekly wage of €334.67.

This complaint was received by the Workplace Relations Commission on 24th August 2020.

Prior to hearing the complaint, I went through the Zalewski judgement from the Supreme Court. Both parties agreed that the hearing of the complaint could go ahead.

The complaint comes in three parts:

CA-00039326-001.

The Complainant informed the hearing that she was placed on a temporary lay-off on 12th March 2020 as the casino had to close due to the current pandemic.

The Complainant was issued with a letter of cessation of trade by the Respondent company on 24th of June 2020.

Since that time all attempts to contact the company have failed.

The Complainant contends that she is due her statutory redundancy payment, payment in lieu of her statutory notice period and also due payment for the Public Holidays falling during the period between her temporary lay – off and the termination of her employment.

CA-00039326-002

The Complainant has submitted requests to her employer in relation to her Redundancy pay, Statutory Notice and payment for the Public Holidays falling during the period between her temporary lay – off and the termination of her employment.

No RP 50 or supporting paperwork have been provided by the Respondent to date.

CA-00039326-003

The Complainant contends that the Respondent failed to notify the Minister of collective redundancies as prescribed by the European Communities ( Protection of Employment ) Regulations 2000 and also failed to enter any consultation with the employees.

The Respondent employer took over the business in 2018 and employees transferred with their Terms and Conditions protected by TUPE Regulations.

The Respondent employer had no option but to place all employees on temporary lay – off when the current COVID pandemic forced the closure of many businesses throughout the country including the Respondent organisation.

Employees were paid all monies due in wages and any outstanding holiday entitlement.

During the lay off period the Respondent had to continue paying rent and had invested heavily in refurbishment of the premises.

Due to these financial difficulties the company had no option but to cease trading and this fact was communicated to all employees by letter dated 24th June 2020.

The Respondent accepts that employees are entitled to a statutory redundancy payment and contend that they do not have the financial resources to make these payments. Likewise, monies due to employees in lieu of   any statutory period of notice.

The Company states that all employees were in receipt of the Pandemic Unemployment Payment (PUP) and as such are not entitled to payment for any Public Holidays falling during the period of temporary lay – off.

CA-00039326-003

The Respondent contends that all employees were aware of the situation in the company at the time of the closure and afterwards.

When it became obvious that the business had no alternative but to cease trading this was communicated to all employees by letter on 24th June 2020.

CA-00039326-001.

Redundancy.

There can be no doubt. The Complainant has an entitlement to a statutory redundancy payment.

Employment commenced on 2nd July 2008 and ended on 24th June 2020. This equates to a statutory redundancy figure of approximately €8,360.00. This sum should now be paid to the Complainant.

Notice.

The complaint for payment of a statutory notice period was made under the Redundancy Payments Act 1967. This complaint should have been made under the Minimum Notice and Terms of Employment Act, 1973.

Pursuant to section 39 (2) of the Organisation of Working Time Act, 1997 and the table attached thereto I am amending this complaint accordingly.

Section 39(2) of the Organisation of Working Time Act, 1997 reads as follows:

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by the party concerned, be amended by the authority so as to state correctly the name of the employer concerned or other material particular.

It is noted that the Minimum Notice and Terms of Employment Acts, 1973 to 1991 are included in said table.

The Complainant was entitled to 6 weeks’ notice and I now order the Respondent to pay a gross sum of €2,008.02 to the Complainant in lieu of this statutory notice.

Public Holidays.

Also, under the Redundancy Payments Act the Complainant has claimed that she has an entitlement to be paid for any Public Holidays falling during the period of temporary lay – off.

This complaint should have been made under the Organisation of Working Time Act, 1997.

Pursuant to section 39 (2) of the Organisation of Working Time A, 1997 and the table attached thereto I am amending this complaint accordingly.

Section 39(2) of the Organisation of Working Time Act, 1997 reads as follows:

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by the party concerned, be amended by the authority so as to state correctly the name of the employer concerned or other material particular.

There is an entitlement to be paid for Public Holidays falling during the first 13 weeks of a lay-off.

Section 21(5) Organisation of Working Time Act 1997 and Schedule Three of that Act relate to this entitlement.

In the instant case there were four Public Holidays between 12th March and 24th June. I now order the Respondent to pay the Complainant the gross sum of €267.74 in lieu of these Public Holidays.

CA-00039326-002

The Respondent should furnish all paperwork required by the Complainant to facilitate the Complainant’s claim to a statutory redundancy payment.

CA-00039326-003

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

Section 9 of the Protection of Employment Act, 1977 reads as follows:

(1)    Where an employer proposes to create collective redundancies, he shall with a view to reaching an agreement, initiate consultations with employees’ representatives representing the employees affected by the proposed redundancies.

(2)    Consultations under this section shall include the following matters –

a.       The possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or otherwise mitigating the circumstances,

b.       The basis on which it will be decided which particular employees will be made redundant.

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

Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 reads as follows:

6.(1) An employee, or a trade union, staff association or excepted body on behalf of an employee, may present a complaint to a rights commissioner that an employer has contravened section 9 or 10 of the Act of 1977 and, if he, she or it does so, the commissioner will give the parties an opportunity to be heard by him or her and to present to him or her any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

6 (2) A decision of a rights commissioner under paragraph (1) of this Regulation shall do one or more of the following:

(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 the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with the regulations under section 17 of the Unfair Dismissals Act 1977.

In the instant case I find that the Respondent has breached section 9 of the Protection of Employment Act 1977 in making no attempt to initiate consultation with employees. I now order the Respondent to pay compensation of €1,338.68 (four weeks pay) to the Complainant for this breach.

All monies to be paid to the complainant within 42 days from the date of this decision.

As outlined above.