Complainant

Respondent

Parties

Anne Maher

Johnnies Fish and Chips Limited

Representatives

Not represented

Not represented

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-00040837-001

05/11/2020

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

CA-00040837-003

05/11/2020

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

CA-00040837-004

05/11/2020

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

CA-00040837-005

05/11/2020

On June 18th 2016, Ms Maher commenced working for EOT Enterprises Limited, a company operating a Spar shop and a chipper in Nurney, County Kildare.  Although she started working in the Spar shop, on the fifth day of her employment, June 23rd 2018, she moved to the chipper.  Up to March 2020, when the chipper closed due to the Covid-19 pandemic, Ms Maher had generally been working 15 hours a week, earning €151.50.

The register of the Companies Registration Office shows that Johnnies Fish and Chips Limited was registered on February 20th 2018.  Although Ms Maher always worked in the chipper, she understands that from June 2016 she was employed by EOT Enterprises Limited, and that in January 2018, her employer changed to Johnnies Fish and Chips Limited.  She was not consulted about this, and she was never formally notified of the transfer.

On March 20th 2020, shortly after the onset of the Covid-19 pandemic, Ms Maher was informed by her employer that the chipper was closing because of Covid-19 restrictions.  She then received the Pandemic Unemployment Payment. 

On July 23rd 2020, Ms Maher said that she got a phone call from a manager in the company, who informed her that the chipper was being taken over and that she was being made redundant.  At the hearing, Mr Kinsella said that he decided to rent the chipper to the manager’s brother.

On October 16th 2020, Ms Maher said that the manager sent her a text message to say that her redundancy cheque was available for collection in the Spar Shop.  Accompanying the cheque and a payslip was a note which indicated that Ms Maher’s start date was January 5th 2018.  This is the date on which Ms Maher’s employment changed from EOT Enterprises Limited to Johnnies Fish and Chips Limited.  She received €833.25 in redundancy pay and €143.25 in holiday pay.  No payment was made in respect of notice of the termination of her employment.

Ms Maher’s complaint is that her redundancy pay has not taken account of her employment with EOT Enterprises from June 18th 2016 until January 4th 2018.  She also claims that she is entitled to pay in lieu of notice.

CA-40837-001:  Complaint under the Redundancy Payments Act 1967

Ms Maher claims that her redundancy pay should have been based on her continuous service with EOT Enterprises Limited and Johnnies Fish and Chips Limited from June 18th 2016 until July 23rd 2020.  From June 18th 2016 until January 4th 2018, her employer was EOT Enterprises Limited, and, apart from the first four days, she always worked in the chipper.

CA-40837-003:  Complaint under Minimum Notice and Terms of Employment Act 1973

In her evidence at the hearing, Ms Maher said that the chipper didn’t re-open and she was informed on July 23rd 2020 that it was changing hands and that she was being made redundant.  She received no formal notice to this effect, and she assumes that her employment ended on that day.

CA-40837-001:  Complaint under the Redundancy Payments Act 1967

In his evidence at the hearing, Mr Kinsella said that Ms Maher worked for Johnnies Fish and Chips Limited from January 2018 and that her redundancy pay was based on her service from then.

CA-40837-003:  Complaint under Minimum Notice and Terms of Employment Act 1973

Mr Kinsella did not refute Ms Maher’s assertion that she did not receive notice of the termination of her employment.

CA-40837-001:  Complaint under the Redundancy Payments Act 1967

At the hearing, I explained to Ms Maher and Mr Kinsella that, in accordance with Regulation 5 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Transfer Regulations”), in July 2020, when the chipper transferred to a new operator, Ms Maher was entitled to transfer to the employment of the new proprietor.  Regulation 5 provides as follows:

“The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee are prohibited.”

While it is apparent that her dismissal on the ground of redundancy was unfair, Ms Maher said that she accepts the decision of her former employer to make her redundant.  Her complaint is about the calculation of her redundancy lump sum.

In January 2018, Ms Maher’s employment transferred from EOT Enterprises Limited to Johnnies Fish and Chips Limited.  Regulation 4(1) of the Transfer Regulations relates to the transfer of contractual entitlements and provides that:

“The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

The effect of this provision is that there is no break in the service of an employee whose employment transfers from one employer to another in a business that continues as a going concern.  Therefore, for the purpose of the calculation of her redundancy lump sum, Ms Maher’s service is from June 18th 2016 until July 23rd 2020, a period of 4.10 years. 

Based on her weekly wages of €151.50 and service of 4.10 years, I find that, on July 23rd 2020, Ms Maher was entitled to a statutory redundancy payment of €1,393.80.  I have calculated this entitlement as follows:

Statutory redundancy:  Two weeks’ pay per year of service, plus one week

((151.50 x 2) x 4.10) + 151.50

(303 x 4.10) + 151.50

1242.30 + 151.50 = 1,393.80

In October 2020, Ms Maher received a redundancy payment of €833.25, leaving a shortfall of €560.55. 

CA-40837-003:  Complaint under Minimum Notice and Terms of Employment Act 1973

Section 4(2)(b) of the Minimum Notice and Terms of Employment Act 1973 provides that, as a person with more than two years’ service and less than five years, Ms Maher was entitled to two weeks’ notice when her employment was terminated on July 23rd 2020.  As her employment was terminated without notice on  July 23rd 2020, she is entitled to two weeks’ pay in lieu of notice.

CA-40837-001:  Complaint under the Redundancy Payments Act 1967

I decide that this complaint is well founded.  I direct the respondent to pay Ms Maher €560.55 in respect of the shortfall in her statutory redundancy payment.

CA-40837-003:  Complaint under Minimum Notice and Terms of Employment Act 1973

I decide that this complaint is well founded.  I direct the respondent to pay Ms Maher €303.00 in respect of her entitled to two weeks’ pay in lieu of notice of the termination of her employment on July 23rd 2020.

CA-40837-004 and CA-40837-005:  These complaints have been adjudicated on under complaint number CA-40837-003.

For clarity, in respect of complaints CA-40837-001 and CA-40837-003, I have decided that Ms Maher’s complaints are well founded and I direct the respondent to pay compensation of a total amount of €863.55.  A statutory redundancy payment is not subject to tax.  The award under the Minimum Notice Act is compensation for a breach of a statutory entitlement and is also not subject to tax.

Redundancy, minimum notice