ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00029389
Parties:
| Complainant | Respondent |
Parties | Jaroslaw Legut | Whw Brothers Limited Colossus Casino |
Representatives | Self | Company Director, Mr Sean He |
Complaint(s):
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-00040064-001 | 24/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00040064-002 | 24/09/2020 |
Date of Adjudication Hearing: 10/06/2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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(s).
Background:
The Respondent company operates as a casino. The Complainant was employed from 21st March 2017 until 4th June 2020 as a Security Officer, he worked 52 hours per week for which he was paid a gross weekly wage of €708.67. This complaint was received by the Workplace Relations Commission on 24th September 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:
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Summary of Complainant’s Case:
CA-00040064-001 The Complainant informed the hearing that he 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 he is due his statutory redundancy payment, payment in lieu of his statutory notice period and also due payment for the Public Holidays falling during the period between his temporary lay – off and the termination of his employment.
CA-00040064-002
The Complainant has submitted requests to his employer in relation to his Redundancy pay, Statutory Notice and payment for the Public Holidays falling during the period between his temporary lay – off and the termination of his employment.
No RP 50 or supporting paperwork have been provided by the Respondent to date.
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Summary of Respondent’s Case:
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.
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Findings and Conclusions:
CA – 00040064 – 001 Redundancy. There can be no doubt. The Complainant has an entitlement to a statutory redundancy payment. Employment commenced on 21ST March 2017 and ended on 24th June 2020. This equates to a statutory redundancy figure of approximately €4,524.00. 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 2 weeks’ notice and I now order the Respondent to pay a gross sum of €1,417.34 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 €566.94 in lieu of these Public Holidays. CA – 00040064 – 002 The Respondent should furnish all paperwork required by the Complainant to facilitate the Complainant’s claim to a statutory redundancy payment.
All monies to be paid to the complainant within 42 days from the date of this decision.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
As outlined above. |
Dated: 21st September 2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Collective Redundancy |