Complainant

Respondent

Parties

Jacqueline  Mulligan

Carnoet Limited

Complainant

Respondent

Anonymised Parties

Jacqueline Mulligan

Carnoet Limited

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-00045474-001

30/07/2021

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

CA-00045474-002

30/07/2021

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

CA-00045474-003

30/07/2021

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: 39 hours

3.       PRSI Class: A

4.       Gross weekly wage: €445

5.       Business Sector: Public House

6.       Reason for Redundancy: Business in Receivership

7.       Commencement 15th of June 2002

Date of Layoff 15th of March 2020.

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.

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-00045474-001  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 15th of June 2002

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

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 €445

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 15th of June 2002 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 15th of June 2002 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 €445 gross weekly wage

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

CA-00045474-002 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-00045474-003 Organisation of Working Time Act, 1997

The complainant stated in an email dated 29th of November 2021 that his complaint form should be amended to include statutory holiday entitlement as she had received none.

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 15h of March 2020. The Public Holidays that fall due during this 13-week period are:

1.       St. Patrick’s Day 17th of March

2.       Easter Monday 13th of April

3.       May Bank Holiday 4th of May

4.       June Bank Holiday 1st June

Gross weekly pay is €445, and the Public Holiday entitlement is 1/5th = €89. The complaint for Public Holiday entitlement is well founded and in the 13-week period of layoff there are 4 Public Holidays to be paid = 4 x €89 = €356.

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 15th of March 2020.

 Her annual leave entitlement is calculated based on:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

The complainant accrued no annual leave during 2021 as she was on lay-off from the 15th of March 2020.

Based on the payslips submitted, the complainant worked 485 hours during 2020. Based on 8% of hours worked= 38.8 hours x €11 = €427 in holiday pay.

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 €302.40 in addition to her Public Holiday entitlement of €356.

CA-00045474-001  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 12(2) and 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:

6.       Start date 15th of June 2002

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

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

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

10.   Gross weekly wage €445

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 15th of June 2002 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 15th of June 2002 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 €445 gross weekly wage

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

CA-00045474-002 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-00045474-003 Organisation of Working Time Act, 1997

The complainant stated in an email dated 29th of November 2021 that his complaint form should be amended to include statutory holiday entitlement as she had received none.

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 15h of March 2020. The Public Holidays that fall due during this 13-week period are:

5.       St. Patrick’s Day 17th of March

6.       Easter Monday 13th of April

7.       May Bank Holiday 4th of May

8.       June Bank Holiday 1st June

Gross weekly pay is €445, and the Public Holiday entitlement is 1/5th = €89. The complaint for Public Holiday entitlement is well founded and in the 13-week period of layoff there are 4 Public Holidays to be paid = 4 x €89 = €356.

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 15th of March 2020.

 Her annual leave entitlement is calculated based on:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

The complainant accrued no annual leave during 2021 as she was on lay-off from the 15th of March 2020.

Based on the payslips submitted, the complainant worked 485 hours during 2020. Based on 8% of hours worked= 38.8 hours x €11 = €427 in holiday pay.

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 €302.40 in addition to her Public Holiday entitlement of €356.

Redundancy-Layoff