Complainant

Respondent

Parties

Iwona  Drawc

Belfam Ltd T/a The Zip Yard (Cavan)

Representatives

Annemarie Donohoe North Connacht & Ulster Citizens Information Service

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-00042739-001

26/02/2021

The Complainant commenced employment as a full-time front of house employee with the Respondent on 19 February 2018 and was paid a weekly wage of €500 net. She stated that she was entitled to a redundancy payment following the termination of her employment on the grounds of redundancy on 30 September 2020 which she did not receive.

The Complainant’s employment commenced on 19 February 2018 as a Full Time Front of House employee.  Her contract was for 40 hours per week earning a basic remuneration of €500 net.  On 14 July 2019 she became unwell and she was certified by her GP as unfit to work until 12 August 2019.  A follow up medical certificate, dated from 12 August 2019 to 2 December 2019, was provided by the Complainant and both certificates were delivered to her place of work as per the Sick Leave policy in the contract of employment.  

The Complainant attended her GP on 22 October 2020 and they discussed her options regarding her return to work.  The GP advised her that when she felt she was fit to return to the workplace it should be on reduced hours and that she could increase the hours accordingly as she felt fit to do so.  The Complainant was provided with a letter from her GP on that date and she gave this to the Respondent.  On discussing the matter with her employer, it was agreed that the reduced hours would be suitable to all parties as business was quiet at that time.  The Complainant remained on sick leave until the end of the certified period and returned to the workplace on 5 December 2019. 

She was presented with new Terms of Employment which reduced her normal working hours from 40 to 20 per week.  She never accepted the new terms but believed they would only be for a temporary period to facilitate her gradual return to work as per her GP’s advice. The Complainant stated she presumed that over a period of time she would have her full-time hours re-instated, especially as she was quickly recovering from her illness and was keen to work full time as evidenced by her not signing the new terms of employment.

The Complainant also stated that she regularly asked her manager for an increase in her hours, as she had recovered significantly form her medical condition, but these requests were never acted upon.  There were periods of time when the Complainant had no working hours due to the downturn in business.  

She was placed on a lay off due to the COVID Pandemic in March 2020 and was informed by her employer on 16 September 2020 that the business had been sold and her employment would cease on 30 September 2020.

The Complainant’s employment commenced on 19 February 2018 as Full Time Front of House with Seamstress duties and her contract was for 40 hours per week earning a basic remuneration of €500 net. On 9 July 2019, the Respondent received a call from the Complainant’s daughter to say that her mother was sick and was unable to attend work that day. On 5 November 2019, the Respondent spoke with the Complainant for the first time since she had gone on sick leave after the Complainant approached the store manager to enquire if they would ’take her back on a part time basis”.  She also advised that she would only be interested in a maximum of 20 hrs a week and indicated that she intended to claim social welfare for the remainder of the week and asked if the Respondent would do a letter for Social Welfare setting out her work details.

The Complainant commenced her new position on 5 December 2019 and at no point did she ask for additional days. The store closed for Christmas on 23 December and reopened to normal hours on Mon 6 January. She did an additional two days on the week of 20 January on top of her own two days. She worked two days a week when the Respondent was open in January and only one day per week in February because it was very quiet.

On 14 March 2020, the Respondent closed their doors due to the Covid lockdown and all staff were issued with notice of this and advised how to claim social welfare for this period. The business re-opened in mid-August and from the end of August the Complainant was back working one day a week and up to two days by the end of September when the business transferred to the new owners. While the Complainant was given her full notice entitlements, the Respondent accepted that she was due a redundancy payment but disputed the figure.

Schedule 3 of the Act in relevant part states:

Reckonable Service

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.

Normal Weekly Remuneration

13. For the purposes of this Schedule, in the case of an employee who is paid wholly by an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration does not vary in relation to the amount of work done by him, his normal weekly remuneration shall be taken to be his earnings (including any regular bonus or allowance which does not vary in relation to the amount of work done and any payment in kind)  for his normal weekly working hours as at the date on which he was declared redundant, together with, in the case of an employee who is normally expected to work overtime , his average weekly overtime earnings as determined in accordance with paragraph 14.

ANALYSIS

While the date of the Complainant’s termination for the purposes of this decision is 30 September 2020, I noted that she was put on temporary lay-off as a result of the lockdown caused by the Covid pandemic on 14 March 2020 until 26 August 2020. This period of lay off is not allowable for the purposes of calculating reckonable service because it was within three years of the termination of the Complainant’s employment, namely between 14 March 2020 on 30 September 2020. This analysis is in line with paragraph 8 ( c ) of the Third Schedule above.

I also note that the Complainant was off sick on 9 July 2019 and that she returned to work on 5 December 2019. Given that her period on sick leave was therefore less than 26 weeks, the entire period of sick leave counts as reckonable service, which is in line with paragraph 8 ( b ) of the Third Schedule above.

I further note that the Complainant was issued with a new contract of employment with effect from 5 December 2019 wherein her hours were reduced to 20 hours per week and that she did not object to this reduction. While the Complainant’s representative stated that she never accepted these new terms and that her normal weekly remuneration for the purposes of the redundancy calculation should therefore be based on her remuneration prior to her going on sick leave in July 2019, the Act, as outlined above, does not provide for this as it clearly states in Paragraph 13 above that

“his normal weekly remuneration shall be taken to be his earnings (including any regular bonus or allowance which does not vary in relation to the amount of work done and any payment in kind)  for his normal weekly working hours as at the date on which he was declared redundant”.

While I recognise that there is Departmental guidance which states that statutory redundancy should be calculated based upon full-time weekly earnings where an employee is on reduced working hours for less than a year before he or she is made redundant or if in excess of a year, not on a voluntary basis, I cannot go outside of what the legislation states, namely that “normal weekly remuneration shall be taken to be his earnings…. for his normal weekly working hours as at the date on which he was declared redundant” (my emphasis)

I therefore find that the Complainant’s normal weekly remuneration, in line with the Act, was €200 per week when her role was made redundant on 30 September 2020, as set out in the contract of employment which applied from 5 December 2019.