Complainant

Respondent

Parties

Siobhan Flanagan

Mario Limited

Representatives

  South Connacht Citizens Information Service

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-00046866-001

27/10/2021

The complainant submits that she has not been paid redundancy and also claims minimum notice.  The respondent refutes the complaint.

The Complainant submits on her complaint form that she did not receive her entitlement to a statutory redundancy payment.  In the complainant’s submission in advance of the hearing, the complainant submitted that she was also seeking minimum notice payment.

The Complainant commenced employment on 1st November 2013 with the Respondent, employed for 19 hours per week as a Barista and Supervisor. The job involved serving customers, waiting on tables, prepping food, supervision and managing the staff roster. At any one time the complainant supervised up to five members of staff.

On or about March 2020 the respondent’s premises were closed due to the Covid 19 pandemic. On or about the first lifting of Covid 19 restrictions by the Irish government the Complainant received a telephone call from the area manager Sarah Ruane advising the Complainant that only two staff were being taken back and there were no hours available for the Complainant. The Complainant did not receive any further communication from the Respondent until on or about the 10th / 11th August 2021, when the area manager, Sarah Ruane, telephoned and requested the Complainant hand in her notice. The Complainant refused as she had heard the coffee loft had closed and the business had ceased trading.

On 13th August 2021 the Complainant emailed the Respondent requesting confirmation from the Respondent that the shop was no longer open. As the Complainant did not get a response to her email, she sought advice from her local Citizens Information Centre. The Complainant opted to follow the redundancy procedures and sent a letter and RP77 to the Respondent, claiming a statutory redundancy payment. The Respondent failed to respond and the Complainant submitted a complaint to the Workplace Relations Commission for non-payment of statutory redundancy.

At the hearing the complainant submitted that she had not received minimum notice.

It was submitted that the Respondent did not adhere to proper redundancy procedures. The Respondent ignored the request for Statutory Redundancy Payment when the Complainant submitted the RP77 form. The Respondent’s area manager requested the Complainant’s resignation when the coffee shop was closed. The respondent did not give the Complainant a proper redundancy notice period.

The Evidence of Ms Flanagan was that she worked 19 hours per week and that the first occasion that the shop closed came as a shock.  She was not given any hours when the coffee shop reopened.  She said that in August 2021 Ms Ruane contacted her to hand in her notice but the complainant was aware the coffee shop had closed in and the complainant had not resigned her position.

Under cross examination Ms Flanagan said she received a phone call when the coffee shop reopened in 2020 but was told there was no work for her.  She did not hear anything again until August 2021 when Ms Ruane told the complainant she had to hand in her notice and that between June 2020 and August 2021 there had been no contact with the respondent.  She denied that she resigned her position.

The respondent denied the allegations.

It was submitted that the coffee shop closed in March 2020 and reopened June 2020 but that the complainant did not return to work and would not return to work.  The coffee shop remained open for a period of time until it had to close again owing to covid-19 restrictions.

The Evidence of Ms Ruane was that she had most dealings with the complainant as she was the area manager.  She said she advised the complainant and other staff in March 2020 that the coffee shop would shut down due to covid-19.  She said that she talked to the complainant in June 2020 to ask if the complainant was coming back and was advised that she would not be returning as she was staying on the pandemic payment and opening a business. 

Under cross examination Ms Ruane said that Ms Flanagan was never removed from payroll and that she deemed Ms Flanagan to still be an employee in August 2021.  She did not know why she had not written out to the complainant in 2020 if she believed the complainant had resigned her position in 2020.

The Evidence of Mr Costello was that it was strange times and that this would explain why the complainant’s letter was not replied to.  Mr Costello said that it was his understanding that the complainant refused to come back to work and that he believed the complainant was opportunistic.

The complainant submits that she was made redundant but did not receive redundancy payment.  The respondent submits that the complainant had terminated her own employment and therefore, redundancy payment is not owing.

The WRC received a submission on 3rd August 2022 which refers to a complaint regarding minimum notice.  The WRC complaint form is not a statutory form but I note there is no mention of minimum notice within the complaint form received on 27th October 2021.

Section 41(6) states that “

(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. 

Section 41(8) sets out that”

(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.

Nothing was submitted by the complainant explaining or excusing the delay in submitting her minimum notice complaint within the period of 6 months and therefore I find that I have no jurisdiction to hear the minimum notice part of her complaint as the complaint is out of time.

Section 7(1) provides 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 F18[four years] ending on that date.

Section 11 sets out under Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

It was not in dispute that the complainant ceased working in March 2020 during the first covid lock down.  There was conflict in evidence regarding whether the complainant was requested to return to work in the Summer 2020 when the coffee shops reopened for a short time.  The respondent asked the complainant for a letter of resignation in August 2021 and the complainant refused to do so and submitted a RP77 which the respondent did not respond to.  Having heard all the evidence and submissions I find the complainant’s evidence more credible that the respondent did not engage with her and requested her resignation in August 2021 and I note Ms Ruane’s evidence that in 2021 she deemed the complainant to still be an employee.  The  complainant submitted an RP77 form and if the respondent disagreed with the complainant’s understanding of her status of employment at that time, the respondent failed to engage with the complainant.

I find that the respondent’s premises closed and that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Start date: 01 November 2013

Termination date: 10 August 2021

Weekly gross pay: €209

Lay off owing to Covid-19: 15th March 2020 until date of termination.

These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

I find the complaint regarding minimum notice is out of time.

I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Start date: 01 November 2013

Termination date: 10 August 2021

Weekly gross pay: €209

Lay off owing to Covid-19: 15th March 2020 until date of termination.

These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy payment