Complainant

Respondent

Parties

Derek  Hyland

Carnoet Limited The Foxhound Inn

Complainant

Respondent

 Parties

Derek Hyland

Carnoet Limited The Foxhound Inn

Representatives

  Self

Patricia Heavey Patrick F. O'Reilly & Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00045177-001

14/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045177-002

14/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045177-003

14/07/2021

The complainant worked as a Bar manager with the employer respondent. Arising from trading difficulties the company has appointed a receiver.  On the 28th of October 2021 the employee sent the employer an RP 9 form, which notified the employer of his intention to claim redundancy.

The employer previously completed an unsigned RP 50 form with the following details:

1.       Job Title: Manager

2.       Weekly Hours: 39

3.       PRSI Class: A

4.       Gross weekly wage: €700

5.       Business Sector: Public House

6.       Reason for Redundancy: Business in Receivership

7.       Commencement of employment: 14th of September 1986

The complainant worked as a bar manager and due to the Pandemic, the business had to close. The business closed on or about the 15th of March 2020.

The last day of work was on the 19th of March 2020. Thereafter he received payment from his employer who availed of the employment wage subsidy scheme and the last payment received from his employer was on the 27th of August 2020.

He continued to be paid a salary, which was made up of a portion from his employer and the government wage subsidy, and this payment ended on the 27th of August 2020.

The business has now gone into receivership. (That fact was confirmed by the respondent Solicitor in attendance at the hearing).

On the 29th of May 2021 the payroll section issued an unsigned RP 50 forms detailing relevant facts to assist the processing of the complainant’s redundancy entitlement to Social Welfare. It was not a record of any redundancy payment being made.

The employer encountered very extreme trading conditions arising from the pandemic. It is the hope of the employer that the business can be sold as a going concern.

CA-00045177-001  Statutory Redundancy Entitlement

Section 12 of the Redundancy Payment Act 1967 as amended states:

Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) ( a ) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The employee has met the conditions pursuant to section 12 and has notified the employer of his intention to claim redundancy and the requirement to give 1 weeks’ notice to the employer.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 14th of September 1986

2.       Contractual termination date (allowing for 1 week’s notice to employer) 4th of November 2021.

3.       Date of lay-off the 28th of August 2020.

4.       The RP9 Form was served on the employer on the 28th of October 2021.

5.       Gross weekly wage €700

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 14th of September1986 to the time of temporary lay-off on the 28th of August 2020.

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:           

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 gross weekly wage =

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

CA-00045177-002 Minimum Notice

The employee is not entitled to notice as they have exercised their right to redundancy under section 12 of the Redundancy Payments Acts 1967 which is treated as the employee resigning by serving at least one week’s notice on the employer.

The complaint is not well founded.

CA-00045177-003 Organisation of Working Time Act, 1997

The complainant stated in an email dated 28th of October 2021 that his complaint form should be amended to include statutory holiday entitlement as he had received none for 2020 and for 2021.

Section 21 of the Organisation Working Time Act 1997 as amended as detailed at Schedule 3 of the Act provides for entitlement to Public Holidays for the first 13 weeks of layoff. Layoff occurred on the 28th of August 2020. The Public Holidays that fall due during this 13-week period are:

1.       October Bank Holiday 26th of October

Gross weekly pay is €700, and the Public Holiday entitlement is 1/5th = €140. The complaint for Public Holiday entitlement is well founded.

An employee does not accrue holiday entitlement during layoff. The claim for holiday entitlement for 2020 is partly upheld as entitlement accrued up to lay-off on 28th of May 2020. The employee was in receipt of a wage up to that day; although, part funded through the employee wage subsidy scheme, that constituted a wage or salary. His annual leave entitlement was 1.66 days per month or 20 days for a full holiday year. In this case the accrual for 2020 equates to 10 months x 1.66= 16.6 days x €140 (daily rate) = €2324.

The complainant accrued no annual leave during 2021 as he was on lay-off from 28th of August 2020.

The complaint for annual leave entitlement is well founded up to the date of layoff and in line with the Directive cannot be expunged where unpaid and I determine that the complainant is entitled to an award of €2324 in addition to his Public Holiday entitlement of €140.

CA-00045177-001  Statutory Redundancy Entitlement

Section 12 of the Redundancy Payment Act 1967 as amended states:

Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) ( a ) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The employee has met the conditions pursuant to section 12 and has notified the employer of his intention to claim redundancy and subject to 1 weeks’ notice to the employer.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 14th of September 1986.

2.       Contractual termination date (allowing for 1 week’s notice to employer). While the RP notice was dated the 20th of September 2021 it was only sent to the employer on the 28th of October 2021. Allowing for the 1 week notice period, the date of termination of the contract is the 4th of November 2021.

3.       Date of lay-off the 28th of August 2020.

4.       Gross weekly wage €700

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 14th of September1986 to the time of temporary lay-off on the 28th of August 2020.

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:           

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 gross weekly wage =

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

CA-00045177-002 Minimum Notice

The employee is not entitled to notice as they have exercised their right to redundancy under section 12 of the Redundancy Payments Acts 1967 which is treated as the employee resigning by serving at least one week’s notice on the employer.

The complaint is not well founded.

CA-00045177-003  Organisation Working Time Act:

The complainant stated in an email dated the 28th of October 2021 that his complaint form should be amended to include statutory holiday entitlement as he had received none for the 2020 and for 2021.

Section 21 of the Organisation Working Time Act 1997 as amended as detailed at Schedule 3 of the Act provides for entitlement to Public Holidays for the first 13 weeks of layoff. Layoff occurred on the 28th of August 2020. The Public Holidays that fall due during this 13-week period are:

1.       October Bank Holiday 26th of October

Gross weekly pay is €700, and the Public Holiday entitlement is 1/5th = €140. The complaint for Public Holiday entitlement is well founded.

An employee does not accrue holiday entitlement during layoff. The claim for holiday entitlement for 2020 is partly upheld as entitlement accrued up to lay-off on the 28th of May 2020. The employee was in receipt of a wage up to that day; although, part funded through the employee wage subsidy scheme, that constituted a wage or salary. His annual leave entitlement was 1.66 days per month or 20 days for a full holiday year. In this case the Accrual for 2020 equates to 10 months x 1.66= 16.6 days x €140 (daily rate) = €2324.

The complainant accrued no annual leave during 2021 as he was on lay-off from the 28th of August 2020.

The complaint for annual leave entitlement is well founded up to the date of layoff and in line with the Directive cannot be expunged where unpaid and I determine that the complainant is entitled to an award of €2324 in addition to his Public Holiday entitlement of €140.

Layoff -Redundancy