ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036725
Parties:
| Complainant | Respondent |
Parties | Eileen O'Haire-O'Malley | Peter Casserly William F. Semple & Company |
Representatives |
|
|
Complaint:
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-00047987-001 | 05/01/2022 |
Date of Adjudication Hearing: 05/09/2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with 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.
The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties in attendance were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same.
The complainant, Eileen O’Haire-O’Malley, and the respondent, Peter Casserly, Respondent, gave evidence under affirmation and cross examination was permitted.
Background:
The complainant submits that she had not been paid her redundancy payment and that the respondent has miscalculated the payment. The respondent does not dispute that the complainant is entitled to redundancy payment. |
Summary of Complainant’s Case:
The complainant submitted that she commenced employment on 10th October 1977 and earned €782.58 gross at the time her employment ended and worked 21 hours per week.
The complainant worked as a Legal Executive in the Solicitor’s office and was placed on lay off on 16th April 2020 owing to Covid-19. She engaged with the respondent during lay off regarding returning to work but as a result of Covid-19, work was significantly reduced and she remained on lay-off. The respondent confirmed this to her in letters on a regular basis and copies of letter were provided.
On 11th October 2021, the complainant issued an RP9 form to the respondent and was advised on 15th October 2021 that the respondent accepted the claim to redundancy and would not be filing a counter notice. The complainant submitted that she did not receive notice and on 20th October 2021 the complainant issued an RP77 to the respondent. The complainant gave evidence that the accountant who has been dealing with this on behalf of the respondent had miscalculated her redundancy payment and had failed to take note of her Covid-19 lay off period which would have impacted the calculation of redundancy payment. |
Summary of Respondent’s Case:
The respondent did not dispute the complainant’s evidence and apologised to her for delays she incurred. Mr Casserly gave evidence that any delays incurred were because of medical issues, that he had and confirmed that the complainant’s position was redundant and that she was owed redundancy payment in accordance with the legislation. |
Findings and Conclusions:
The complainant submits that her position is redundant, that the respondent has calculated her redundancy payment incorrectly as he has failed to take into consideration COVID-19 related lay off which caused a break in service and that she has not been paid redundancy payment.
Mr Casserly confirmed that the redundancy payment has not been paid, that the complainant’s position is redundant and that there was a break-in service owing to COVID-19.
Section 7(1) provides that: 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 F18[four years] ending on that date.
The complainant submitted that she was not formally given notice of termination and submitted that a date of notice of redundancy is necessary for the social welfare redundancy calculator. It would appear from the submissions and evidence that notice of termination was 11th October 2021, the date when the complainant issued the RP9 to the respondent.
Having heard the evidence I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following: Date of Commencement: 10 October 1977 Date of Termination: 15 October 2021 Gross Weekly Pay: €782.58 Period of Covid-19 Related lay-off: 16th April 2020 to 15th October 2021 This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.
|
Decision:
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.
Having heard the evidence I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following: Date of Commencement: 10 October 1977 Date of Termination: 15 October 2021 Gross Weekly Pay: €782.58 Period of Covid-19 Related lay-off: 16th April 2020 to 15th October 2021 This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.
|
Dated: 06th September 2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Redundancy |