Complainant

Respondent

Parties

Mary  Dolan

Philip & Patsy Rogers In A Nutshell (Reg Bus Name No. 550096)

Representatives

  self

 No Show

Act

Complaint Reference No.

Date of Receipt

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

CA-00050602-001

12/05/2022

While the business has reopened since Covid, the Complainant’s employment was terminated on or about the 4th of June 2021 when Mr. Philip Rogers informed the Complainant by phone that she was being let go.

The Complainant has contacted the Respondent employer requesting her redundancy entitlement to be told that it would be paid subject to a review with the accountant who was providing services to the business.

Despite numerous requests for her redundancy payment to be paid, no payment has been received.

The Complainant worked as a shop assistant since the 2nd of December 2012.

She initially was placed on layoff on or about the 16th of March 2020.

She subsequently was verbally informed that in fact her job with the business was terminated on or about the 4th of June 2021.

The Complainant’s employment has been terminated on or about the 4th of June 2021.

The Respondent has no work for the Complainant and has on numerous occasions promised to follow up on the Complainant’s entitlement to redundancy.

On or about the beginning of December 2021 she served a RP 77 Form on her employer.

The RP 77 form is used when:

This form may be used by an employee

A. who considers that he/she is entitled to a redundancy payment and his/her employer has

not acknowledged his/her entitlement by giving him/her

(i) Notice of proposed dismissal for Redundancy (Form RP50 Part (A))

(ii) Part (B) of Form RP50

(iii) Lump Sum Claim Declaration

In a text message dated the 2nd of December 2021 Philip Rogers replies to the Complainant to state ‘that the accountant requires your date of birth, thanks Philip’. However, nothing has changed since then and the Complainant believes that she is being given the run around.

The Complaint was lodged with the Commission on the 12th of May 2022.

 A remote hearing was arranged so that the Respondent could reply to the Complaint made against them. I am satisfied that they were properly notified of the hearing and failed to attend.

There is no communication from the Respondent to explain why they did not participate through a remote link.

There is not request for a postponement of this hearing.

There is no request for a face-to-face hearing.

I am satisfied that the Respondent was provided with an opportunity to be heard and has not presented any reply to the complaint made against them.

The Complainant was made redundant on or about the 4th of June 2021.

The Complainant commenced employment with the Respondent on 2nd of December 2009.

The Complainant was placed on lay-off on the 16th of March 2020

The Complainant’s gross pay is €308.76.

The Complainant worked on average 25 hours per week.

Section 7 of the Redundancy Payment Act 1967 as amended states:

General right to redundancy payment.

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.

Section 12 of the Redundancy Payment Act 1967 as amended states:

Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) ( a ) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The employee has met the conditions pursuant to section 7 & 12 and has notified the employer of her intention to claim redundancy.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 2nd of December 2009.

2.       Date of termination of employment 4th of June 2021.

3.       Date of lay-off 16th of March 2020.

4.       The RP77 Form was served on the employer on or about the 1st December 2021.

5.       Gross weekly wage based on recent payslips €308.76

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

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.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on 2nd December 2009 to the time of lay-off on the 15th of March 2020.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

Statutory Redundancy is calculated as follows:

Number of years’ service: service runs from the date of commencement of employment on 1st of August 2004 to the time of lay-off on the 30th of December 2020.

Weeks due under the scheme:    (2 weeks per year plus 1 bonus week)

Wage ceiling under Scheme:        €600 per week

                Gross weekly wage based on recent payslips €308.76

Statutory redundancy entitlement: weeks x gross weekly wage = weeks x gross weekly wage

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed.

The Complaint is well founded.

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed

1.       Start date 2nd of December 2009.

2.       Date of termination of employment 4th of June 2021.

3.       Date of lay-off 16th of March 2020.

4.       The RP77 Form was served on the employer on or about the 1st of December 2021.

5.       Gross weekly wage based on recent payslips €308.76.

Redundancy entitlement