Complainant

Respondent

Parties

Marie  Donohoe

Palomar Limited McSwiggans  Restaurant

Representatives

  Self-represented

 ESA Consulting Associates Ltd.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039439-001

31/08/2020

The complainant did not receive her statutory paid minimum period of notice on the termination of her employment or payment in lieu thereof contrary to the Minimum Notice & Terms of Employment Act, 1973.

The complainant was employed in the accounts section of the respondent’s restaurant from 24 October 2007 until she was made redundant on 20 July 2020.

Her gross weekly wage was €480.

She submitted her complaint to the WRC on 31 August 2020.

Complainant’s evidence.

The complainant states that she is entitled to six weeks’ paid notice at the rate of €480 per week.

On May 29 the complainant and all staff were put on notice of risk of redundancy. The CEO informed her that she would be paid six weeks’ notice.

On June 12th the financial controller emailed the complainant informing her that the office was closing with immediate effect and that she was to be made redundant. She emailed the financial controller stating she was due six weeks paid notice. On the 18th of June the financial controller responded saying that the PUP covered her notice period.

The complainant’s written submission refers to the respondent’s reliance on the First schedule, section 4, subsection 5 which provides that an employee who gives notice of intention to claim redundancy payment in respect of a lay-off or short-time shall be deemed to have voluntarily left his employment. The complainant submits that she did not seek redundancy due to lay-off or short time; in fact, this was not possible due to the Emergency Measures in the Public Interest Covid-19 Act which applied from 13 March 2020.

In cross examination the complainant confirmed that she received the PUP payment from the 14 April until the 20 July 2020.

The complainant confirmed that her hourly rate was €15. She worked an average of 25.5 hours per week in 2020 as her hours had been reduced from 32 in 2019. She is not able to dispute the respondent’s assertion that her gross salary for the 13 weeks/2020 preceding her lay-off was €382.50 per week.

Notwithstanding any tax liability which might arise should her complaint be upheld, and monies awarded, the complainant stated that she wished to proceed with her complaint under the Minimum Notice and Terms of Employment Act, 1973.

The respondent disputes the complainant’s entitlement to paid notice.

The respondent’s representative  submits that the section 5 of the  First Schedule of the Act of 1973, as amended, which provides that an employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his/her  employment thus rendering him/her ineligible for notice payments in accordance with section 4 of the Act of 1973.The respondent’s representative states that as the complainant was granted redundancy, she is deemed to have voluntarily left her employment and is therefore not entitled to receive notice payment.

The complainant received PUP payments of €350 per week for the duration of her notice period an amount which exceeded her net weekly payment for the 13 weeks preceding the date of the lay-off.

Notice Payments.

Notwithstanding the respondent’s submission that the complainant is ineligible for notice payments, but should the adjudicator find to the contrary, the Second Schedule, section 3, provides that an employer will pay an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

The complainant’s average earnings in the 13 weeks prior to the layoff were €382.50.

The respondent requests that the adjudicator uphold his case that the complainant is ineligible for paid notice as through no fault of either side, she was made redundant because of the effects of Covid-19 on the respondent’s business.

I am required to decide on the complainant’s entitlement to paid notice in accordance with section 4(2)(d) of the Act of 1973 which provides for six weeks paid notice in respect of the complainant’s service of 12.75 years.

It is accepted that she was not paid the six weeks’ notice.

The respondent requests that I accept that as she was made redundant, she resigned and is therefore ineligible for notice payment of six weeks in accordance with section 5 of the First Schedule of the Act of 1973, as amended.

I do not accept this contention as the complainant did not apply for redundancy nor could she have due to the Government regulations in force at the time, the Emergency Measures in the Public Interest Covid-19 Act, 2020 which prohibited an employee from applying for redundancy in the circumstances obtaining in the respondent’s business. The decision to make the complainant redundant was delivered to her as a fait accompli.

I accept that the complainant has a statutory entitlement to paid notice in accordance with section 4(2)(d) of the Act of 1973. I find this complaint to be well founded.

Calculation of notice payments.

It is accepted the complainant’s working hours fluctuated but that she worked an average of 25.5 hours per week during 2020. The complainant did not dispute that her average weekly earnings stood at €382.50.

Relevant Law.

Section 3 of the Second Schedule provides as follows;

              “Employments for which there are no normal working hours

3. Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.”

As the complainant was laid off for the period 14 March to 20 July 2020, the reckonable period for calculation is the thirteen weeks preceding the layoff. It is accepted that she earned €382.50 for this period.

I require the respondent to pay the sum of €2295 to the complainant, which represents six weeks wages, subject to all lawful deductions.

I find the complainant to be well founded. I direct the respondent to pay the sum of €2295 to the complainant subject to all lawful deductions.

Minimum notice payments in a Covid -19 directed redundancy