Complainant

Respondent

Parties

Kristina  Svarcova

 PMPD Foods Limited, t/a Toffee and Thyme

Representatives

  Self

 Pauline Maguire, Owner

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-00040804-001

04/11/2020

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

CA-00040804-002

04/11/2020

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

CA-00040804-003

04/11/2020

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

CA-00040804-004

04/11/2020

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

CA-00040804-005

04/11/2020

CA-00040804-006

04/11/2020

The complainant commenced employment with the respondent in June 2018 and was employed on a part-time basis in the kitchen of the café which was operated by the respondent.  The business was affected by the restrictions imposed as a result of the Covid-19 pandemic and discussions took place with the landlord in relation to a rent reduction.  When these discussions failed to reach agreement the owner was advised to cease trading.  The café was closed and the employees were informed of the situation.  The complainant is claiming that she is due payments in respect of minimum notice and the consequent redundancy.  The respondent claims that alternative employment was offered to the complainant but that she refused to make herself available for work.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020, and S.I. No. 359/2020, which designates the WRC as a body empowered to hold remote hearings.  

The owner informed staff on 3 August 2020 that the café was closing with immediate effect.

Staff were advised that the accountant would calculate redundancy payments and any other payments due to them.

The complainant was asked by the owner on 15 August if she was interested in working in another business (shop) owned by the respondent in a neighbouring town and the complainant replied that she did not want to work in a different business in another town.

The following week the owner put up a message on WhatsApp advising that there was work available in deep-cleaning the café but the complainant was not available for that work due to her domestic situation / holidays and informed the owner accordingly.

On 30 October the respondent informed employees that the accountant had advised her that there was some money due to them and the complainant duly collected her payment and signed for it.

The complainant could not get unemployment payment until September as the respondent had not taken her off the books.

The respondent had no option but to cease trading because the landlord would not agree to extend a rent reduction.

The respondent informed the employees of the situation and but told them that there would be some work available for the rest of the month.

There was a possibility of the business being taken over which required work to be done on the premises.  In addition, there was some work available in another business operated by the respondent but the complainant said that she was not available for either employment.

The advice received by the respondent was that if work was available and an employee refused it then their employment should be terminated.  The complainant was subsequently removed from the payroll.

The original hearing held on 18 May 2021 was adjourned because of the issue of a possible conflict of evidence arising.  The evidence at the resumed hearing was heard under oath / affirmation. 

These complaints were heard in conjunction with similar complaints from another employee contained in the file ADJ-00030567.

At the commencement of the hearing the complainant confirmed that there was no complaint filed by her regarding hours of work as referenced in Complaint No. CA-00040804-006.

The respondent operated a café which was affected by the restrictions on such businesses brought about by the Covid-19 pandemic.  The business re-opened in June 2020 operating on a take-away basis only.  The landlord had agreed to a temporary reduction in the rent on the premises but at a meeting held on 31 July 2020 the respondent was informed that this reduction would not be extended beyond two months.  The owner met with the respondent’s accountant and was advised that the business could not continue to trade on that basis and a decision was made to close the café.

A meeting of employees was arranged for 3 August 2020 at short notice attended by four members of staff.  At that meeting the owner told the employees about the difficulties regarding the rent and the advice of the accountant to close the business.  According to the complainants they were shocked at the news and enquired as to what would happen next.  They said that they were informed that holiday money and redundancy would be calculated by the accountant in due course.  The owner stated that she informed those present that the landlord might reconsider or that she might be able to find alternative premises to trade from.  The owner also posted a message on the staff group WhatsApp reiterating the background to the closure decision, thanking the staff for their hard work and ending with the hope that “down the road we will rise again”.

On the following day the respondent posted a message on social media for the benefit of customers in which it was stated that “it has become impractical and financially difficult to continue trading”.  The message went on to thank the public for their support and custom over 24 years and also thanked the staff.  The respondent, however, did not remove anyone from being classed as active on the payroll at that time.  On 15 August the complainant got a personal text from the owner to the effect that there was some work available in the retail premises operated by the respondent in a neighbouring town.  The complainant replied saying that she was unavailable but asked to be kept updated as regards the café.  Around this time the owner gave an interview on RTE Radio regretting the circumstances that had brought about the closure of the café.   On 18 August the owner sent a text to the staff WhatsApp group in which she stated that everybody was still on the payroll and that she had offered work to staff in the retail business or in the café which required a deep clean.  The text ended with the hope that the café might reopen under new ownership in September.  The complainant had holidays already booked pre-closure commencing on 24 August.  Towards the end of that week the owner sent the complainant a text to say that she was on a rota for deep-cleaning for three days the following week.  The complainant subsequently replied stating that there were issues regarding her daughter’s return to school because of Covid-19 protocols and that she would not be available as a result.  During this time the complainant had difficulty in getting any payment from social welfare as she was still on the respondent’s payroll (but not receiving pay).  She sought advice on this and received Social Welfare payments from September.  The complainant lodged her complaints with the WRC on 4 November 2020.  

The next communication was a text received by the complainant on 28 November saying that the accountant had advised that there was an outstanding payment due to staff and arrangements were made for the collection of same.  On 30 November the owner instructed her accountant to remove from the payroll anyone that was still on it.  On 17 March 2021 the owner sent a group text advising that new premises for the café had been secured by the respondent and that a new team was being put together to staff it.  The text went on to say that anyone with an interest in returning to the café should advise the owner but that she was aware that some staff had new paths / careers and she wished everyone the best of luck. 

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

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…     

It is clear that the business in which the complainant was employed ceased operating with effect from the announcement of the closure on 3 August 2020.  It is accepted that this was due to circumstances that were beyond the control of the respondent.  The respondent did not immediately formally terminate the employment of the employees.  Initially it appears that this was due to a hope by the respondent that the landlord might be convinced to change his mind or alternatively that a new owner would be quickly found who was willing to re-open the café and take over the existing staff along with their terms and conditions of employment.  I sympathise with the respondent particularly as the business had been operating for over 20 years but, given the circumstances of the time, this proved unrealistic.  The owner in her evidence made reference to advice received from the WRC.  It would appear that the owner contacted the WRC and that she raised the question of what would occur if there was a new employer willing to take over the café and retain staff on their existing terms and conditions of employment.  The owner claims that she was advised that in that case the employees would be required to transfer.  There is an understandable tendency in such circumstances for people to hear what they want to hear.  It is clear, however, that this hypothetical scenario did not in fact exist in this case and that the respondent’s business was closing because the lease on the premises in which it operated had to be surrendered.

Another issue raised by the respondent was that work was available and offered to the employees but that this offer was refused by members of staff including the complainant.  Section 15(2) of the Redundancy Payments Act, 1967, states:

An employee shall not be entitled to a redundancy payment if

(a)    his employer has made to him in writing an offer to renew the employee’s contract of employment or to engage him under a new contract of employment…

The text messages received by the complainant were in relation to deep-cleaning in the café for three days or sporadic employment in a retail outlet in another town.  These offers do not constitute alternative work or “an offer of suitable employment in relation to the employee” under the provisions of the Act. 

I find therefore that the complainant’s employment was terminated by reason of redundancy with effect from the announcement by the respondent on 3 August 2020.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

(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 –

(a)    If the employee has been in the continuous service of his employer for less than two years, one week,

(b)    If the employee has been in the continuous service of his employer for two years or more but less than five years, two weeks…

I note that the complainant’s service commenced on 11 June 2018.  I find that the complainant did not receive notice of the termination of her employment on 3 August 2020.  Based on her service the complainant had an entitlement to two weeks’ notice.

Complaint No. CA-00040804-001:

This is a complaint under the Redundancy Payments Act, 1967 to the effect that the complainant did not receive any redundancy payment.  I have decided for the reasons outlined above that the complainant’s employment was terminated by reason of redundancy on 3 August 2020.

I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:     11 June 2018

Date of Termination:      3 August 2020

Gross Weekly Pay:          €264.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Complaint No. CA-00040804-002:

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the complainant did not receive proof of the employer’s inability to pay redundancy.  The issue of inability to pay redundancy did not arise in this case and no evidence was adduced in this regard.  I therefore find the complaint to be not well founded.

Complaint No. CA-00040804-003:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, to the effect that the complainant did not receive her statutory minimum period of notice or payment in lieu thereof.  I have decided that the complainant did not receive notice of her termination of employment or payment in lieu thereof and that this complaint is well founded..  I therefore order the respondent to pay to the complainant the sum of €528.00 in this regard.

Complaint Nos. CA-00040804-004/5:

These are also complaints under the Minimum Notice and Terms of Employment Act, 1973, and it is clear that the subject of these complaints has in fact already been dealt with in Complaint No. CA-00040804-003.  I therefore find them not well founded.

Complaint No. CA-00040804-006:

As noted above no complaint regarding hours of work was in fact submitted by the complainant.

Redundancy Payments     Minimum Notice      Alternative Work