ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00030723
Parties:
| Complainant | Respondent |
Parties | Daiva Dobrovolskiene | Whw Brothers Focus Limited Colossus Casino |
Representatives | Self | Company Director. |
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-00039274-001 | 19/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00039275-001 | 19/08/2020 |
Date of Adjudication Hearing: 27/08/2021
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 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 cleaner in the casino, her employment commenced 17th June 2010 and ended on 24th June 2020. The Complainant was employed for 24 hours per week for which she received a gross weekly wage of €244. This complaint was received by the Workplace Relations Commission on 19th August 2020.
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Summary of Complainant’s Case:
As per complaint form the Complainant states that she did not receive a statutory redundancy payment. In a comprehensive submission the Complainant has raised further complaints i.e. she did not receive her statutory minimum notice and claims that the Respondent employer failed to enter any consultation process prior to the redundancy. The Complainant was informed by the company that they were ceasing to trade on or about the 24th of June 2020. However, despite requesting his 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.
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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 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.
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Findings and Conclusions:
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. It should be noted that the Complainant was on a period of lay – off from 14th March 2020 to 24th June 2020. In relation to a payment in lieu of minimum notice I am satisfied that pursuant to section 39 of the Organisation of Working Time Act 1997 (and the table attached thereto) I can allow a claim for minimum statutory notice. Section 39 of this Act reads as follows: 39 (1) In this section “relevant authority “means a rights commissioner, the Employment Appeals Tribunal or the Labour Court. 39(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 so as to state correctly the name of the employer concerned or the other material particular. The Minimum Notice and Terms of Employment Acts, 1973 to 1991 are included in the Table. The Respondent employer was sent a copy of this submission on 7th August 2020. The Complainant is entitled to a payment of six weeks pay (€1,464) in lieu of notice and this amount should be paid to her. The Protection of Employment Act is not included in the Table.
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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: 13th September 2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Redundancy Payments Act. Payment in lieu of notice. |