Complainant

Respondent

Parties

Paulette  Guinan

M. F. Kenny & Sons Kenny's

Representatives

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-00040347-001

09/10/2020

The Complainant was employed as a Shop Assistant by the Respondent from the 31st August 2015 until her last date of employment on the 11th July 2020.  The Complainant submitted a complaint under the Redundancy Payments Act, 1967, claiming that she did not receive her redundancy payment upon termination of her employment. 

In her complaint form, the Complainant submitted that the shop had closed on a temporary basis on the 23rd March 2020 due to COVID restrictions and that on the 11th July that year her employer told her that the shop would not be reopening. 

The Respondent accepted that the Complainant was entitled to redundancy payments and confirmed that efforts had been made to contact the Complainant in that regard.  The Respondent also confirmed that he was not in a position to pay the redundancy entitlement. 

The Complainant advised that she commenced employment with the Respondent on the 31st August 2015 and that she had a good working relationship with the Respondent throughout her employment.  She confirmed that the shop closed due to COVID on the 23rd March 2020 and that she was subsequently contacted by the Respondent on the 11th July 2020 to advise that the shop would not be reopening.  She stated that this was a simple matter, that she had an entitlement to redundancy and that she had contacted the Respondents’ daughter who looked after wages and accounts about the redundancy situation and that she had not heard anything back from her.  In the context that over six months had passed from the date of the termination of her employment, she submitted her case to the Workplace Relations Commission.  The Complainant confirmed that she worked approximately 24 hours per week and that she received €250.00 gross pay per week approximately. 

The Respondent confirmed that he had no money.  He advised that a part time staff member who had previously been employed with him had stolen approximately €50,000 from the business and that while he had pursued matters through the courts, he only got back €10,000 of that money.  He advised that he had worked at a loss for three years and that he had continued to pay remaining staff out of a pension which he received.  He advised that when COVID hit and restrictions were put in place, he considered how he might maintain the business but that he was encouraged by his family to close the business due both to the financial situation and due to his wife’s illness.  He and his family were gravely concerned for his wife’s health throughout COVID as she would have been categorized as a vulnerable person in the context of the disease.  At the time of the closure of the business, he stated that he owed approximately €30,000 to creditors and that in some instances he negotiated creditors taking back stock while in other instances he had stock that went off in the shop.  He confirmed that the Complainant was a wonderful worker throughout her employment and was indeed a good friend to him and his family.  He confirmed that she also had always supported him and his wife throughout his wife’s illness and that she was one of the finest employees he had ever worked with. 

He advised that he fully accepted that the Complainant was entitled to redundancy payment and that he was in agreement with the rates of pay advised by the Complainant and the duration of employment.  He stated that initially he was unaware of the option to have redundancy paid from the National Fund but that his accountant advised him of this facility and that as a consequence he contacted the Complainant by phone on the 24th June 2021 and left a message for her.  When he did not receive a response to that message, he sent a further text message asking her to make contact and he advised that she never made contact.  He advised that he would have liked to have tried to sort the matter informally between them and that he was still anxious to proceed on that basis. 

I considered carefully the oral submissions made by both parties at the hearing.  I noted that there was no dispute between the parties in relation to the duration of employment, nor in relation to the entitlement of the Complainant to redundancy payment based on that employment.   I noted that the Respondent had tried to make contact with the Complainant to address matters and to make application through the National Redundancy Fund to address her entitlement.  I noted the Respondents’ financial position as outlined above. 

I noted that at the hearing the Complainants’ partner advised that he had spoken to the Respondent in relation to the Complainants’ entitlement to redundancy and that the Respondent had advised that he had no recollection of that conversation.  Notwithstanding any confusion that may have arisen in relation to contact between the parties, it is clear to me that the Complainant has an entitlement to redundancy payment.  I accepted the Respondents’ bona fides in relation to both the personal and the financial situation that gave rise to the closure of the business in July 2020.  I noted that the Complainant lodged her complaint with the Workplace Relations Commission on 9th October 2020.  I further noted the position of the Complainant that she had a distressing illness herself in the intervening period and that in that context she had not pursued the matter as vigorously as she might otherwise have done at that time. 

I noted that Section 24 of the Act provides that “an employee shall not be entitled to a lump sum” unless they have a further complaint within 52 weeks of the date of termination of employment and I noted that the Complainant had submitted her complaint within that timeframe. 

Section 7 (2) of the Redundancy Payments Act states that “for the purpose of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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”. Based on the foregoing it is clear that the Complainant has an entitlement to redundancy based on her service in employment with the Respondent and I so find. 

Based on the findings outlined above, it is my decision that the Complainant’s case is well founded.  In these circumstances, it is my decision that the Complainant should be awarded her statutory redundancy entitlement. 

I note that the parties agreed at hearing to proceed with making an application for the statutory redundancy payment from the National Fund pending the provision of this decision.  If the Complainants’ statutory redundancy payment has been paid from the National Fund prior to the issuing of this report, then no further entitlement to statutory redundancy accrues. 

Redundancy payment, statutory redundancy