ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00034230

Parties:

	Complainant	Respondent
Parties	Bernadine Murphy	Carnoet Limited Foxhound Inn

	Complainant	Respondent
Parties	Bernadine Murphy	Carnoet Limited Foxhound Inn

Representatives

self

Patricia Heavey Patrick F. O'Reilly & Company

Complaint(s):

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-00045291-001	21/07/2021

Date of Adjudication Hearing: 28/02/2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaints 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 as a Bar Person with the employer respondent. Arising from trading difficulties the company appointed a receiver. On the 28th of October 2021 the employee sent the employer an RP 9 form, which notified the employer of her intention to claim redundancy.

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

1. Job Title: Bar Person

2. Weekly Hours: 9 hours as detailed in the employer’s draft RP50

3. PRSI Class: A

4. Gross weekly wage: €108 as per draft RP50 and complaint form.

5. Business Sector: Public House

6. Reason for Redundancy: Business in Receivership

7. Commencement 25th August 2007 as per the employer’s record.

Date of Layoff 15th of March 2020.

Summary of Complainant’s Case:

The complainant worked as a bar person 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 15th of March 2020. Thereafter she received social welfare payments.

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

On the 10th of June 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.

Summary of Respondent’s Case:

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

Findings and Conclusions:

CA-00045291-001 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 as pursuant to section 12 and has notified the employer of his intention to claim redundancy subject to the 12(2) 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 25th of August 2007 as per employer’s record.

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

3. Date of lay-off the 15th of March 2020.

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

5. Gross weekly wage €108

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 25th of August 2007 to the time of lay-off on the 15th of March 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: start date of 25th of August 2007 to date of layoff on 15th of March 2020

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 = weeks x €108 gross weekly wage

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

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the