Complainant

Respondent

Parties

James  Keegan

Old Belvedere Rugby Club

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Breda Stanley Pickford, South Leinster  Citizens Information Service

Jack O'Beirne, Mangan O'Beirne, Solicitors

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-00048181-001

18/01/2022

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

CA-00048181-002

18/01/2022

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

CA-00048181-003

18/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048181-004

18/01/2022

The Complainant commenced his employment as a part-time bar man on 4th April 2011 and was paid €147 per week. He asserted that the Respondent failed to pay him either the public holidays or the redundancy payment he was entitled to.

The Complainant commenced his employment as a part-time bar man on 4th April 2011 and was paid €147 per week. Further to his temporary lay-off on 13th March 2020 as a result of the pandemic, he was not contacted by the Respondent in relation to his return to work. Having heard that the bar had re-opened in 2021 and having not been contacted by the Respondent, he presumed that his position had been made redundant. He therefore sent a RP 77 form to the Respondent, the receipt of which was acknowledged on 20th December 2021. The Respondent did not make any payment on foot of him having submitted the RP 77 form however and did not call him back to work.

The Respondent stated that the Complainant commenced employment as a casual barman in 2011 and was laid off on 13th March 2020. On the instructions of its Honorary Secretary, the Respondent communicated with the Complainant’s father Mr. John Keegan in September 2020, when the Bar was allowed to re-open, to ask if his son would continue working as bar staff in the Club.  It was asserted that this was the common practice and procedure for all communications relating to the bar staff. In response, the Complainant communicated via his father John Keegan that he was not interested in returning to the Club to work in the bar. This was accepted by the Respondent as the Complainant’s resignation.

Subsequently, in August 2021, a long-time office employee, retired after many years of service. Whilst taking herself off the payroll, she noted that several of the bar staff were still on the payroll. Upon instructions from the then Honorary Treasurer of the Club, she proceeded to remove herself and the bar staff from the payroll and informed the Revenue Commissioners of same.

It was denied by the Respondent that the Complainant’s employment ended on 20th December 2021 and it was also asserted that at no time did the Complainant contact the club, either himself directly or through John Keegan, seeking to resume his work. In addition, it was highlighted by the Respondent that the Complainant’s job at the club remains open to him, should he wish to take it.

The Law

Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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.

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained

Findings

I note the Complainant’s assertion that he did not resign his position with the Respondent. I also note the General Manager’s statement in evidence that the Complainant’s father, John Keegan who was the Bar Manager of the Respondent, told him in September 2020 that his son would not be returning to work with the Respondent and that he accepted this as his resignation. Even if I accept the General Manager’s evidence that he was indeed informed of this by the Complainant’s father, which was disputed, I cannot accept that the Complainant terminated his own employment on the alleged say so of his father and find therefore that he did not resign his position with the Respondent.

I am also at a loss to understand why John Murphy, the Honorary Treasurer of the Respondent, who did not attend the hearing to give evidence, acknowledged receipt of the Complainant’s RP 77 via email on 21 December 2021 but failed to question him on it or let him know that his position had not been made redundant, if in fact it had not been as the Respondent asserted. I am satisfied, given the failure of Mr Murphy to contact him on receipt of the RP77 form, that it was reasonable for the Complainant to conclude that his position was redundant on 21 December 2021 because there was no suggestion to the contrary made by the Respondent and the bar had been open for some time prior to this. 

CA-00048181-003:

The Law

The Act also outlines an employee’s entitlement in respect of public holidays.

21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d)   An additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Findings

As highlighted above, Section 41 (6) of the Workplace Relations Acts states that I can only entertain a complaint which has been presented within “6 months beginning on the date of the contravention to which the complaint relates”.  I find therefore that the cognizable period in relation to the non-payment of public holidays is 19th July 2021 to 20th December 2021, the date of the Complainant’s effective redundancy.

CA-00048181-001:

I allow the Complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payment Acts 1967 – 2012 based on the following criteria: 

-          Date of commencement:  4 April 2011

-          Date of termination: 20 December 2021

-          Gross weekly wage: €147

-          Non-reckonable break in service: 13 March 2020 – 20 December 2021

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00048181-003:

Given that the cognisable period is between 19th July 2021 and 20th December 2021, and that there were only 2 public holidays in this period, namely 2nd August 2021 and 25th October 2021, I make an award of €120 in respect of this complaint. This includes the payment he should have received for the two days as well as an award of compensation.