ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030567
Parties:
| Complainant | Respondent |
Parties | Jolanta Kuisule | PMPD Foods Limited, t/a Toffee and Thyme |
Representatives | Self | Pauline Maguire, Owner |
Complaint(s):
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-00040815-001 | 04/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00040815-002 | 04/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040815-003 | 04/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040815-004 | 04/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040815-005 | 04/11/2020 |
| CA-00040815-006 | 04/11/2020 |
Date of Adjudication Hearing: 22/02/2022
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment with the respondent in May 2014 and was employed on a part-time basis in the kitchen of a café operated by the respondent. The business was affected by the restrictions imposed as a result of the Covid-19 pandemic. 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 resultant 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. |
Summary of Complainant’s Case:
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) operated by the respondent in a neighbouring town. The complainant advised that she did not have transport to get her to that location. The complainant then developed Covid-19 symptoms and was advised to isolate. On 30 October the owner informed employees that the accountant had advised her that there was some money due to them and the complainant duly collected her payment. The complainant could not initially get unemployment payment as the respondent still had her classed as active on the payroll records. On 2 September the complainant requested that she be removed from the payroll as she was commencing a hairdressing course.
|
Summary of Respondent’s Case:
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 but told them that there would be some work available for the rest of the month. There was a possibility that the business would be 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 did not make herself available for this work. 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. |
Findings and Conclusions:
These complaints were heard in conjunction with similar complaints from another employee contained in the file ADJ-00030565. 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-00040815-006. 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 a temporary reduction on 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 at short notice which was attended by four members of staff. At that meeting the owner told the employees about the difficulties regarding the rent and of 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 poste 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 it which it was stated that “it has become impractical ad 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 stating that she had no means of travelling to that location which was 15 km away. The owner texted the complainant two days later saying that a lift could be arranged but at that stage the complainant had developed Covid-19 type symptoms and had been advised to isolate. There was also a text from the owner regarding the availability of work for some days doing deep-cleaning in 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 everyone 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 re-open under new ownership in September. The complainant was experiencing difficulties regarding social welfare payments as she was still registered as “active” on the payroll system. On 2 September the complainant texted the respondent requesting that she be removed from the payroll as she was in the process of commencing a hairdressing course. The next communication received from the respondent was a text sent 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 as being 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 purpose 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 formally immediately terminate the employment of the employees. It appears that initially 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 found quickly 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 owner 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 employees but that this offer was refused by members of the 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, (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… I note that the complainant’s service commenced on 1 May 2014. 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 four weeks’ notice. |
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.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Complaint No. CA-00040815-001: This is a complaint under the Redundancy Payments Acts, 1967 – 2012, 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: 1 May 2014 Date of Termination: 3 August 2020 Gross Weekly Pay: €165.00 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-00040815-002: 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 not to be well founded. Complaint No. CA-00040815-003: 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 complaint did not receive notice of the termination of her 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 €660.00 in this regard. Complaints Nos. CA-00040815-004/5: These are also complaints submitted under the Minimum Notice and Terms of Employment Act, 1973 but it is clear that the subject of these complaints has been dealt with in Complaint No. CA-00040815-003. I therefore find these complaints not to be well founded. Complaint No. CA-00040815-006: As noted above no complaint regarding hours of work was in fact submitted by the complainant. |
Dated: 29th March, 2022
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
Redundancy Payments Alternative Work Minimum Notice |