Complainant

Respondent

Parties

Helena  Humphries

O'Farrell Lynch Estates Limited

Representatives

Breda Stanley Pickford Citizens Information Services

 No show

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00044053-001

13/05/2021

The Complainant commenced employment on the 4th of January 2010 and her terms and conditions transferred to O’Farrell Lynch Estates Limited when brokerage entities merged to form the new entity. The complainant was on sick leave from 3rd of May 2019 to the 26th of May 2020. In June 2020 the Complainant attempted to make contact with her employer; however, contact proved difficult. On the 27th of August 2020 the Complainant was successful in contacting her employer and spoke to a director of the company. She was told that he had no position for her, and he could not afford to pay her redundancy. The Complainant sent a signed RP 77on the 17th of September 2020 to her employer addressed to Mr Barry Lynch 19 Priory House Stillorgan Co Dublin, which is the registered address for the business.

The Complainant has been told that there is no work for her and has applied to her employer for Redundancy.

On the 24th of May 2022 the Respondent employer was notified of the hearing to be held on 19th of July 2022 by registered post. I am satisfied that the Employer has been informed of the hearing, that the Respondent had an opportunity to present their case and failed to attend.

CA-00044053-001 section 39 of the Redundancy Payments Act 1967 as amended:

The Respondent worked in administration for the respondent. After returning from sick leave on or about June 2020 the Respondent proved extremely difficult to contact. On or about the 27th of August the Respondent employer stated that he had no position for the Complainant. On the 17th of September the Respondent sent her RP77 form to her employer. There has been no engagement with her, and the employer continues to be extraordinarily difficult to contact and has not paid redundancy to date.

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

(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 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, 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,

Having heard the evidence and the fact that the Complainant’s work has ceased, I am satisfied that the complainant was dismissed by reason of redundancy and is entitled to a redundancy payment pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date: 4th of January 2010

2.       Date of notice of termination: no notice received.

3.       Date of termination by employer: 27th of August 2020.

4.       Contract date of termination is calculated based on including notice as per the Minimum Notice and Terms of Employment Act 1973 as amended of 4 weeks= a termination date of 23rd September 2020

(4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

However, absence is excluded other than:

10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—

(a) a lay-off,

(b) sickness or injury, or

(c) by agreement with his employer,

such period shall count as a period of service.

The employee was absent from 3rd of May 2019 to 26th of May 2020, which is more than 26 weeks, which means that her service for notice is less than 10 years. Therefore, her entitlement to notice would be 4 weeks.)

5.       Gross weekly wage: €529.04.

Reckonable service under the Redundancy Payments Act 1967 as amended is detailed at Schedule 3:

8. During, and only during, the 3-year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service —

 (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

No layoff has occurred in this case. The Respondent was made redundant on 27th of August 2020 without receiving notice. However, the calculation of redundancy entitlement is the 23rd of September 2020, which is the contract termination date, having regard to the complainant’s right to minimum notice of 4 weeks.

However, at Schedule 3 of the Redundancy Act b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a), should be excluded,which must take account of the absence from 3rd of May 2019 to 26th of May 2020 when the Respondent was on sick leave.

Statutory Redundancy is calculated as follows:

Number of years’ service:           

Weeks due under the scheme: (2 weeks per year plus 1 bonus week)

Wage ceiling under Scheme: €600 per week

I determine that the complainant is entitled to statutory redundancy.

Having heard the evidence and the fact that the Complainant’s work has ceased, no layoff has occurred in this case, I am satisfied that the complainant was dismissed by reason of redundancy and is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967 as amended based on the following facts:

1.       Start date: 4th of January 2010

2.       Date of notice of termination: no notice received.

3.       Date of termination by employer: 27th of August 2020.

4.       Contract date of termination is calculated based on including notice as per the Minimum Notice and Terms of Employment Act 1973 as amended of 4 weeks= a termination date of 23rd September 2020

5.       Gross weekly wage: €529.04.

6.       Absent from work from 3rd of May 2019 to 26th of May 2020.

Statutory Redundancy Entitlement