ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030078

Parties:

	Complainant	Respondent
Parties	Ian O Donovan	Parkwall Taverns Limited The Hole In The Wall

Representatives

Robert Mc Namara Mandate Trade Union

Don Garry

Complaint(s):

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-00040117-001	28/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00040117-003	28/09/2020

Date of Adjudication Hearing: 28/09/2021

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant has worked as Manager for the Respondent since 7th January 1999.

Summary of Complainant’s Case:

The Complainant was notified his position was being made redundant on 3rd July 2020 due to the negative impact of Covid-19 and the closure of the business by the Irish Government. He was invited to a meeting with the Respondent on 7th July 2020 to which he brought his trade union representative. The Respondent ejected the Complainant’s representative from the meeting. Subsequently, the Respondent offered the Complainant an alternative position as restaurant operative at €15.00 per hour on two shifts of eight hours a week, which he refused.

Correspondence from the Respondent claims the Complainant was notified of his redundancy on 19th June 2020 and he was offered alternative employment.

The Respondent confirmed the Complainant was made redundant on 3rd July 2020. The Complainant was not paid redundancy monies due nor his eight-week notice. The Complainant served a RP77 on 22nd September 2020. Prior to the adjourned hearing date, the Complainant received a cheque and payslip from the company for his notice, redundancy pay is still unpaid.

Summary of Respondent’s Case:

A HR representative attended on behalf of the Respondent on 23rd July 2021. Representations were made that there was a conflict of evidence, and the company were unaware of the complaint. There was no appearance by the company Directors. A witness summons was subsequently served on one of the company Directors for the resumed hearing.

There was no appearance by or on behalf of the Respondent or its Director at the resumed hearing on 28th September 2021.

Findings and Conclusions:

I have heard and considered the written and oral submissions of the Complainant.

This complaint was delegated to me by the Director General pursuant to S39 of the Redundancy Payments Acts 1967

The entitlement to redundancy payment arises in Section 7 (1) of the Redundancy Payments Act 1967. An employee, if he is dismissed by his employer by reason of redundancy or is laid off 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 immediately before the date of 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 that business in the place where the employee was so employer, 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, or

(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 henceforth 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 henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

(2A) ……………………….

(3) For the purposes of subsection (1) an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive, but which fall within a period of thirteen consecutive weeks…

Section 8 of the Redundancy Payments Act 1967 provides:

(1) Notwithstanding anything in section 7, where an employee who has been dismissed by reason of redundancy or laid off has, during the period of the four years immediately preceding the date of dismissal or the lay-off, been laid off for an average annual period of more than twelve weeks, the following provisions shall have effect:

(a) that employee shall not become entitled to redundancy payment by reason of dismissal or lay-off until a period equal to the average annual period of lay-off over the said four-year period in relation to that employee has elapsed after the date of dismissal or lay-off.

(b) if, before the termination of the period required to elapse under paragraph (a), that employee resumes work with the same employer, that employee shall not be entitled to redundancy payment in relation to that dismissal or lay-off.

(c) if, before the termination of the period required to elapse under paragraph (a), the employer offers to re-employ that employee and that employee unreasonably refuses the offer, he shall not be entitled to redundancy payment in relation to that dismissal or lay-off.

(2) In a case where this section applies, the period of four weeks first referred to in section 12 or the period of thirteen weeks referred to in that section shall not commence until the expiration of the period (referred to in subsection (1)(a)) equal to the appropriate average annual period of lay-off.

The Respondent was compelled to close the Bar due to the negative impact of Covid-19. I am satisfied this is a genuine redundancy falling within the provisions of S 7(2) c of the Redundancy Payments Act 1967. I am satisfied that the offer of employment made by the Respondent to the Manager to work as a restaurant operative on 2 shifts of 8 hours per week at €15 per hour does not amount to an offer of suitable alternative employment and the employee has acted reasonably in refusing this offer.

The Complainant was employed as a manager of the company in insurable employment from 7th January 1999 until 3rd July 2020 when he was dismissed due to redundancy.

The Complainant sought his redundancy entitlement pursuant to S7 (2) c of the Redundancy Payments Act 1967 on 22nd September 2020 eleven weeks after layoff.

I find the complaint is well founded and the Complainant is entitled to a statutory redundancy payment from 7th January 1999 until 3rd July 2020 at €883.66 wage per week.

The complaint in respect of minimum notice is withdrawn.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find the complaint is well founded and the Complainant is entitled to a statutory redundancy payment from 7th January 1999 until 3rd July 2020 at €883.66 wage per week.

The complaint in respect of minimum notice is withdrawn.

Dated: 21-02-2022

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

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