ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037005

Parties:

	Complainant	Respondent
Parties	Samantha McLoughney	Imelda Cusack

Representatives

Self Represented

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-00048291-001	24/01/2022

Date of Adjudication Hearing: 02/11/2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed but was not availed of.

Background:

The Complainant was employed as a Beauty and Body Tutor and the Respondent operation ceased dealing with clients during the Pandemic. The Complainant was not brought back to work and was unsure of her employment status and contacted the Respondent a number of times regarding her status and eventually submitted an RP 9 form on Oct 26th 2021. The Complainant was seeking her statutory redundancy. The Original claim was taken against a trading name and the Respondent consented at the Hearing to the change of Respondent name as she was a Sole Trader.

Summary of Complainant’s Case:

The Complainant was employed from September 2003 as a Beauty and Body Tutor conducting training courses and was unsure of her termination date.

In September 2020 the Complainant was informed the operation was ceasing operations due to the pandemic. The Complainant contacted the Respondent a number of times to establish her employment status and was told the matter was with the Respondents Accountants. The Complainant noted a Respondent note on Face book that the Business stated it was closed. The Complainant sent in a RP9 form and got no reply. The Complainant sent in a RP77 form and was informed the issue of her redundancy was being dealt with by the Respondents’ Accountant.

The Complainant received a RP50 form but the date of birth, rate of pay and her maternity leave dates were incorrect. The Complainant contacted Revenue to determine her employment status with the Respondent and she was informed she was still an employee of the Respondent according to Revenue. The Complainant received no formal notice of redundancy or the termination of her employment. The Complainant stated she sent the RP9 form to the Respondent on October 26th 2021. The Complainant stated there was difficulty in getting responses from the Respondent to her situation. The Complainant was seeking her statutory redundancy payment.

Summary of Respondent’s Case:

The Respondent stated there were difficulties in trading at that time of the Pandemic and no courses were being taken up by Clients. The Respondent stated on Affirmation they were unaware of the notice on Face Book that they were closed and could not understand how the notice got on Facebook. The Respondent confirmed the Complainants position was redundant. The Respondent confirmed in her evidence that she was now living solely on an old age pension and had no funds to pay any redundancy. The Respondent accepted the Complainants data re her wage and maternity dates. The Respondents Accountant, Fidelma Kelly of David O Donnell Associates, gave evidence on affirmation that she sent into the Department of Social Protection an RP50 in April 2022. This was declined and she had to resubmit the form online. The Respondents Accountant confirmed in evidence that the Respondent did not have funds to pay any redundancy payment.

Findings and Conclusions:

Following the hearing of the evidence, I find that the Complainants employment commenced on September 22nd 2003 and was terminated by reason of redundancy on October 26th 2021, the date the Complainant submitted her RP9 form. The Complainant earned 372.44 Euros per week and was on maternity leave from March 11th 2019 to September 28th 2019. I find both the Respondents and the Accountants evidence of the Respondents financial position credible and the difficulty the Respondent, as an old age pensioner, has to pay the redundancy due. However, this does not affect the Complainants statutory right to redundancy.

Decision:

[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the complainant was made redundant and did not receive a redundancy payment.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows:

7(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) 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, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Section 39 of the Redundancy Payments Acts 1967 – 2020 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Based on the evidence of the Complainant and the Respondent, I allow the Complainants appeal and I award her statutory redundancy on the following basis,. Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.” Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement; September 22nd 2003

Date of Reckonable Service for Redundancy Payment Ceasing on: October 26th 2021

Gross Weekly Wage: 372.44 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act.

I allow the Complaints Appeal.

Dated: 15th November 2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy