Complainant

Respondent

Parties

Laszlo  Pricz

Whw Brothers Focus Ltd Colossus Casino Club

Representatives

  Self

Company director

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-00039940-001

20/09/2020

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

CA-00039940-002

20/09/2020

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

CA-00039940-003

20/09/2020

The complainant worked at the Casino and due to the Pandemic; the casino remained closed accumulating very significant losses that ultimately led to 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 employed as a dealer in the casino, his employment commenced on 18th October 2008 and ended on 24th June 2020. The Complainant was employed for 37.5 hours per week for which he received a gross weekly wage of €419.48.

This complaint was received by the Workplace Relations Commission on 20th September 2020 and consists of three separate complaints, these are as follows:

CA – 00039940 – 001 – complaint referred under section 39 of the Redundancy Payments Act 1967.

CA – 00039940 – 002 - complaint referred under section 39 of the Redundancy Payments Act 1967.

CA – 00039940 – 003 -complaint referred under regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

The hearing of the complaints was conducted virtually on 26th August 2021.

The Complainant was informed by the company that they were ceasing to trade on or about the 24th of June 2020. However, despite requesting her 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, which is signed by the employer and the employee and sent to the Department of Social Welfare.

There was no consultation with the employer prior to being notified of a redundancy situation.

The respondent company as represented by their Director stated that they were insolvent had incurred several hundred thousand euros in loss and had 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.

The employer failed to provide any explanation as to why no consultation had taken place prior to the termination of the Complainant’s employment.

CA – 00039940 - 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 his 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.

CA – 00039940 – 002 - complaint referred under section 39 of the Redundancy Payments Act 1967.

The Respondent employer is hereby instructed to co-operate with the Complainant in the provision of all necessary paperwork to enable him claim for a statutory redundancy payment.

CA – 00039940 – 003 -complaint referred under regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

These regulations amend the Protection of Employment Act, 1977.

Section 5 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. 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 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 I award 4 weeks amounting to €1,677.92 having regard to the obligation under the directive that the award is both proportionate and dissuasive.

CA – 00039940 - 001

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 his 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.

CA – 00039940 – 002

The Respondent employer is hereby instructed to co-operate with the Complainant in the provision of all necessary paperwork to enable him claim for a statutory redundancy payment.

CA – 00039940 – 003

The claim is well founded, and I award 4 weeks amounting to €1,677.92 having regard to the obligation under the directive that the award is both proportionate and dissuasive.

Redundancy; Failure to consult.