Complainant

Respondent

Parties

Anne  Kearse

Christopher Guerin

Representatives

Kate McInerney Michael Houlihan & Partners

Cahir & Co Cahir & Co, Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027875-001

18/04/2019

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

CA-00027875-002

18/04/2019

On the 1st of November 2018 the respondent employer wrote to the complainant to inform her that regretfully he would be making her redundant, as he was unable to continue to run the business due to ill health.

He stated that the redundancy would take effect on 29th of November 2018 and that all monies due would be paid such as outstanding leave on the 19th of November 2018.

The RP 50 detailed the following facts:

1.       Date of commencement 5th of October 1998

2.       Date of termination of employment 13th November 2018

3.       Position Bar Staff

4.       Reason for non-payment-no funds available

5.       Gross weekly wage €120

6.       PRSI Class A

The complainant wrote to the company’s accountant to inform them that her she was in receipt of between €360 and €400 per week and that she had a record of monies that came in and went out of the bar for the last 7 years.

The complainant in her submission stated that the following facts should inform the calculation of her redundancy:

1.       Date of commencement 5th of October 1998

2.       Date of notice of termination 1st November 2018

3.       Employment end date 12th of November 2018

4.       Gross weekly wage €372.88

The complainant wrote to the Commission on the 1st of April 2022 as follows:

Dear Sirs

We refer to the above matters in which we represent the complainant.

These matters were listed for hearing earlier this week before Mr Brian Dalton, Adjudication Officer.

We hereby confirm that the claims brought under ADJ-0021352 … and the claims under ADJ-00021353 … are withdrawn.

We await receipt of the Adjudicator’s decision in respect of the claims under ADJ- 00021349 - CA-00027875-001 and CA-00027875-002 as against Christopher Guerin.

Yours faithfully

Michael Houlihan and Partners

The complainant’s salary has not been properly detailed. She has contacted the Department of Social Welfare and Revenue concerning her correct salary details. The amount declared by her employer to Revenue significantly fell short of what she was actually paid which was of the order of €370 per week in contrast to the declared €120 per week. The complainant’s entitlement under social welfare during Covid reflected the earnings that she had actually received.

The complainant has never received a written contract of employment detailing core terms as required under the relevant statute.

Due to ill health the respondent employer could not attend; however, as an observer the respondent’s solicitor attended.

CA-00027875-002

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 served the employee notice to terminate the employment; I determine that the contract ended by reason of redundancy arising from the cessation of business.  I determine 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 based on the following facts:

1.       Start date: 5th of October 1998.

2.       Date of notice of termination: 1st November 2018.

3.       Date of lay-off 12h November 2018.

4.       Contract date of termination ((e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks) -based on 8 weeks’ notice the contractual termination date was the 19th of December 2018

5.       Gross weekly wage: €372.00

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

8. During, and only during, the 3 year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service —

 (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on 5th of October 1998 to the time of  lay-off on or about the 12th of November 2018. The contract ended  subject to the required 8 weeks notice pursuant to the Minimum Notice and Terms of Employment Act 1973 as amended on the 19th of December 2018 as the notice was served on the 1st of November 2018.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess ” days shall be credited as a proportion of a year.

Statutory Redundancy is calculated as follows:

Number of years’ service:              commencement of employment 5th of October 1998

Weeks due under the scheme:    (2 weeks per year plus 1 bonus week)

Wage ceiling under Scheme:        €600 per week

Statutory redundancy entitlement: weeks x €372 gross weekly wage =

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed.

CA-00027875-001

I note that section 6 of the Terms of Employment (Information) Act 1994 as amended provides:

Existing contracts of employment.

6.— (1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement  containing the particulars specified in subsections (1) and (1A) of section 3  and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4 .

However, this employment contract commenced on the 5th of October 1998 and was subject to the following section under the Act.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

The employee stated that:

I never received a statement in writing of my terms and conditions of employment from my former employer in breach of Section 3 of the Terms of Employment (Information) Act 1994.

The complaint is well founded. Pursuant to section 7 of the Act:

(e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d) , order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers 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 . ]

I order the employer to pay the employee 4 weeks gross salary = 4 x €372= €1488.

CA-00027875-001

I note that section 6 of the Terms of Employment (Information) Act 1994 as amended provides:

Existing contracts of employment.

6.— (1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement  containing the particulars specified in subsections (1) and (1A) of section 3  and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4 .

However, this employment contract commenced on the 5th of October 1998 and was subject to the following section under the Act.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

The employee stated that:

I never received a statement in writing of my terms and conditions of employment from my former employer in breach of Section 3 of the Terms of Employment (Information) Act 1994.

The complaint is well founded. Pursuant to section 7 of the Act:

(e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d) , order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers 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 . ]

I order the employer to pay the employee 4 weeks gross salary = 4 x €372= €1488 arising from the employer’s failure to give the employee a statement in writing no later than 2 months after commencing with the particulars as set out in section 3 of the terms of the employee’s employment.

CA-00027875-002

I am satisfied and determine that the complainant was dismissed by reason of redundancy and is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967-2014 based on the following facts:

1.       Start date: 5th of October 1998.

2.       Date of notice of termination: 1st November 2018.

3.       Date of lay-off 12h November 2018.

4.       Contract date of termination ((e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks) -based on 8 weeks’ notice the contractual termination date was the 19th of December 2018

5.       Gross weekly wage: €372.00

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

8. During, and only during, the 3 year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service —

 (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on 5th October 1998 to the time of  lay-off on or about the 12th of November 2018. The contract ended  subject to the required 8 weeks notice pursuant to the Minimum Notice and Terms of Employment Act 1973 as amended on the 19th of December 2018 as the notice was served on the 1st of November 2018.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess ” days shall be credited as a proportion of a year.

Statutory Redundancy is calculated as follows:

Number of years’ service:              commencement of employment 5th of October 1998

Weeks due under the scheme:    (2 weeks per year plus 1 bonus week)

Wage ceiling under Scheme:        €600 per week

Statutory redundancy entitlement: weeks x €372 gross weekly wage =

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed

Redundancy-Understating Gross Salary