Complainant

Respondent

Parties

Andrea  Valente

Lemon Cafe Bar Ltd

Representatives

  Self-represented

 Non attendance

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-00046850-001

26/10/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant attended the hearing and gave his evidence under affirmation.  The respondent did not attend the hearing.  From the correspondence received from the respondent I am satisfied that they were aware the details of the hearing.  No reason for the non-attendance was offered and after a short period to facilitate late attendance, the hearing proceeded as scheduled and concluded.

The complainant gave his evidence under affirmation.

The complainant stated that he worked for the respondent for eight years from May 2012.  He indicated that he worked 45 hours per week at a rate of €16 per hour.  The complainant submitted that when the lock down came, the respondent business closed for a period from March to June 2020 and again from September until early December when businesses were allowed to re-open in accordance with the guidance provided by the government.

The complainant indicated that he was informed on 7 December 2020 that the respondent café couldn’t re-open at that time.  The complainant stated that although the respondent made an effort to assist him to find alternative employment with an entirely different company, no job offer arose from the respondent’s efforts.

The complainant stated that he tried to get the respondent complete the redundancy process on three occasions, twice by way of text and by providing the RP9 form for completion, however, the respondent failed to make him redundant.  He is seeking a declaration that he was made redundant and seeking his statutory redundancy payment.

The respondent did not attend the hearing of this matter but made brief submissions via email prior to the hearing indicating that the complainant was offered an alternative position but chose not to take it up.

The complainant gave his evidence in a clear and cogent fashion who provided detail as to the various matters that arose as necessary.  He also gave the respondent due credit where such was due and only spoke of the respondent in positive and respectful terms. I found the complainant to be a compelling and credible witness.  Having regard to all the written and oral evidence presented to me in relation to this complaint, I find that the complainant has been dismissed by reason of redundancy and he is therefore entitled to be paid his statutory redundancy.

I note that the complainant indicated that the respondent tried to help his secure alternative employment, with an unconnected employer, however it appears that these efforts did not result in him obtaining alternative employment.

Section 7(1) and (2) of the Redundancy Payments Act of 1967 state, inter alia, that

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(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

The complainant gave credible evidence of the cessation of his employer’s business.  This was supported by the short email received from the respondent which outlined a loss of operational premises. The complainant provided details regarding his employment dates, layoff and other information such as to be able to calculate his statutory redundancy entitlement at €10,260.00 in accordance with the redundancy calculator made available by the Department of Employment Affairs and Social Protection.

Having regard to the written and oral submissions made in relation to this complaint, my decision is to allow the complainant’s appeal against the decision of the employer not to pay redundancy.  The complainant is therefore entitled to statutory redundancy of €10,260 in accordance with the provisions of Department of Employment Affairs and Social Protection Redundancy Calculator.

Redundancy Payments Act – cessation of business – redundancy established – entitlement to statutory redundancy