ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030543
Parties:
| Complainant | Respondent |
Parties | Sarah McNamara | Barnhall Hair Salon Limited |
Representatives | In person | Patrick Byrne - Proprietor |
Complaints:
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-00040065-001 | 24/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040065-002 | 24/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00040066-001 | 24/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040066-002 | 24/09/2020 |
Date of Adjudication Hearing: 07/06/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing. Both witnesses gave evidence having made the Affirmation.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission.
The Employee must have made a claim for a redundancy payment from an employer by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where reasonable cause has given rise to the failure to apply and the Adjudication Officer so finds.
In addition to the foregoing, the Complainant herein also makes a complaint of a contravention (by the Employer) of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and in particular has referred a matter for adjudication as provided for under Section 11 of the Minimum Notice and Terms of Employment Act, 1973. The complaint herein is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973.
The referral has been made within six months of the date on which this claim accrued to the Complainant.
Background:
I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. The parties were happy to make the appropriate Affirmation which I administered at the outset. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. This is a claim for a Redundancy Payment and a Minimum Notice payment. |
Summary of Complainant’s Case:
The Complainant represented herself. The Complainant detailed the two complaints against her previous Employer in the Workplace Relations Complaint Form which issued on the 24th of September 2020. The Complainant stated in evidence that she was made unexpectedly made Redundant in June of 2020. She had worked with this Hairdressing salon for two and a half years. |
Summary of Respondent’s Case:
The Respondent Company was represented by the Proprietor of the business. He indicated that the company ran into difficulty early in the pandemic and with some regret he had to make his workforce Redundant. This happened on the 11th of June 2020. There was no Notice period to allow Employees adjust to the change in their circumstances. |
Findings and Conclusions:
Based on the evidence I have heard, I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 24th of November 2017 The employment ended: 11th of June 2020 Gross weekly wage : €550.00 The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 also applies. I accept that the Complainant’s job was made redundant, and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014. The Complainant was additionally given no Notice of the intention to make her position Redundant. I understand that the Complainant was notified of the termination of her employment by WhatsApp message delivered on the 11th of June 2020. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00040065-001 Based on the evidence I have heard, I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 24th of November 2017 The employment ended: 11th of June 2020 Gross weekly wage : €550.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00040065-002 – There was a contravention of this Act as the Employee was entitled to be given Minimum Notice of the termination of her Employment and needs to be paid in lieu based on the following information: The employment started: 24th of November 2017 The employment ended: 11th of June 2020 Gross weekly wage : €550.00 The Act States that for a period 2 years to 5 years there is an entitlement to 2 weeks pay. The Complainant is entitled to be paid €1,100.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00040066-001 - Withdrawn as a duplicate Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00040066-002 - Withdrawn as a duplicate
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Dated: 14/06/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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