ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00035496

Parties:

Complaint:

Date of Adjudication Hearing:  22/08/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 39 of the Redundancy Payments Act 1967 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 12th October 2021.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a face-to-face hearing at Lansdowne House on 22nd August 2022. The Complainant represented himself whilst the Company Accountant appeared on behalf of the Respondent.  The hearing was held in public pursuant to Section 39(17A) of the Redundancy Payments Act 1967, as inserted by the Workplace Relations (Miscellaneous Provisions) Act 2021.  As this complaint was uncontested by the Respondent, sworn evidence was not required.  There was consent to an amendment of the Respondent’s name to ‘Camrue Catering Limited’ and to updating its contact address.  The Parties were made aware that the Parties’ names would be published within the decision in accordance with Section 39(17B) of the Redundancy Payments Act 1967.  All of the evidence and documentation submitted by both Parties has been considered herein. 

Background:

This complaint for statutory redundancy arises in circumstances where the Complainant was laid off his employment as Head Chef with the Respondent owing to Covid-19 restrictions.  He has neither received payment of a statutory redundancy lump sum nor confirmation of return to his position.  The Respondent concedes this complaint and accepts that he is owed his statutory redundancy.

Summary of Complainant’s Case:

The Complainant gave evidence confirming that he had been employed by the Respondent, a Hotel and Restaurant business from 5th October 1997.  He was laid off on 15th March 2020 owing to Covid-19 restrictions and a letter dated 16th March 2020 from the Respondent confirming same was submitted.  As the time, he was employed as a Head Chef and his remuneration was €854 gross per week.  He had maintained contact by email with the Respondent making regular enquiries about his return to work as submitted.  However, the Respondent had not reopened to date and there had never been any confirmation of his return to work.  Email correspondence with the Respondent submitted indicated that due to a lack of trading, there was no funds available to discharge monies due to its staff.  However, it was hoped that the necessary finance could be raised to reopen.  The Complainant confirmed that he had not been paid his statutory redundancy and other statutory entitlements.  He had retrained in a different area and has recently secured new employment.

Having not received an RP50 Form or lump sum payment from the Respondent, the Complainant had submitted a completed RP9 Form to the Respondent on 1st October 2021 seeking statutory redundancy.  As he did not receive a response, he referred this complaint to the WRC on 12th October 2021.  He received a letter dated 19th July 2022 from the Respondent’s Accountant stating as follows: “The statutory redundancy payment owed is €29,407 based upon the employee’s start date and date of termination of employment..  the complaint is conceded… “  It also proposed that the Complainant would be contacted directly to arrange a payment schedule.  In circumstances where no monies had been paid to date and nothing concrete had been proposed, the Complainant confirmed that he wished to pursue this complaint and seek a decision from the WRC confirming his statutory entitlement to redundancy for the purposes of claiming same from the Redundancy Payments Scheme.  The Respondent’s Accountant did not ask the Complainant any questions.

Summary of Respondent’s Case:

The Respondent’s Company Accountant attended at the hearing on its behalf.  He confirmed that he was the author of the aforesaid letter conceding this complaint and acknowledging that €29,407 was due and owing to the Complainant.  He consented to amendment of the Respondent’s name and contact address.  He confirmed that the Respondent had to close for health and safety reasons owing to Covid-19 restrictions on 16th March 2020 and had been unable to reopen in the interim as investment is required to undertake necessary works.  Owing to the lack of trading and inability to reopen, there had been no funds available to discharge the statutory entitlements due to its staff to date.  However, it was the Respondent’s intention to raise the investment required to discharge its statutory obligations to its staff, undertake the requisite works and reopen.  He indicated that he would be in contact with the Complainant to arrange a schedule of payment of his statutory redundancy.  The Complainant did not have any questions for the Respondent’s Accountant.

Findings & Conclusions:

This complaint is for a statutory redundancy lump sum payment under Section 39 of the Redundancy Payments Acts 1967-2014.  The Acts, related legislation and Regulations made thereunder require that in order to qualify for a statutory redundancy payment, an employee must (1) have at least two years’ continuous service, (2) be in employment which is insurable under the Social Welfare Acts, (3) be over the age of 16, (4) have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements and (5) not have received a lump sum payment.  Periods of lay-off are excluded from reckonable service.  Section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 imposed a freeze on statutory redundancy claims by employees until 30th September 2021 as an emergency measure. 

It is common-case that the Complainant was employed by the Respondent from 5th October 1997 and was laid off from 16th March 2020 owing to Covid-19 restrictions.  At the material time, he was paid €854 weekly.  Not having received either confirmation of a return to his position or a statutory redundancy lump sum payment, on 1st October 2021, he served an RP9 Form on the Respondent pursuant to Section 12 of the Redundancy Payments Act 1967.  He did not receive a counter-notice within the requisite 7-day period pursuant to Section 13 of the Act.  I am further satisfied that he has not been paid statutory redundancy to date.  Based upon his unrefuted and credible evidence as confirmed with supporting documentation and conceded by the Respondent, on the balance of probabilities, I find that the Complainant meets all of the criteria required to entitle him to payment of a statutory redundancy lump sum pursuant to the Redundancy Payments Acts 1967-2014. 

Decision:

Section 39 of the Redundancy Payments Acts 1967-2014 require that I make a decision in relation to this complaint in accordance with the relevant redress provisions if successful.  Based upon the aforesaid reasoning, I find that the Complainant is entitled to a lump sum payment pursuant to the Redundancy Payments Acts 1967-2014 in accordance with the particulars hereunder.  If a claim is made to the Redundancy Payments Scheme, in the first instance, calculation of the lump sum is a matter for the Department of Social Protection.  The current rate of statutory redundancy is two weeks’ pay for every year of service (over the age of 16) plus one additional week’s pay.  Payment is subject to a ceiling of €600 per week.  Whilst layoff is non-reckonable service, the Covid-19 related Lay-Off Scheme is available to employees who have been made redundant since 13th March 2000 and before 31st January 2022 and have lost the opportunity to build reckonable service due to temporary lay-off/s caused by Covid-19 restrictions within that period as occurred in this case. 

Gross Weekly Pay:  €854

Date of Commencement of Employment:  5th October 1997

Period of Covid-19 related lay-off: 16th March 2020 – 1st October 2021

Date of Termination of Employment:  8th October 2021

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts for the relevant period, being a matter for the Department of Social Protection.

Dated:   30/09/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Claim for Statutory Redundancy - Section 39 of the Redundancy Payments Act 1967.