Complainant

Respondent

Parties

Neal  Ashley

Towerbrook Ltd t/a Castle Durrow

Representatives

  Self-represented

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-00048215-001

19/01/2022

The complainant contends that he is entitled to a statutory redundancy payment.

The complainant stated that he was employed as a Sous Chef from 10th May 2017.  The hotel closed due to Covid on 2nd January 2021.  He had to go on the Pandemic Unemployment Payment (PUP).     He submitted that at the end of June 2021 staff were brought in to work, including Head Chef, Banqueting Chef, Commis Chef, Kitchen Porter and Wait staff.  He tried to find out what the position was in relation to his return to work but was not given a return date.  He went to speak to the Head Chef in November 2021.  He discovered that the Commis Chef had threatened to leave and was given a pay rise.  The complainant was then on a reduced PUP payment.  He sent the respondent various forms claiming redundancy but did not receive any communication from them until a generic email dated 23rd March 2022 inviting staff back to work.

The respondent stated that the restaurant in the hotel was closed and only some small weddings were the main business between April 2021 and March 2022.  On 23rd March 2022 having decided to re-open, the respondent asked staff including the complainant to come back to work.  The complainant did not reply.  He did not reply or come back as he had secured another job.  He was told by one of the owners that his position was not made redundant.  His job is still open and has to be filled if he is not returning to work for the respondent. 

Section 7 of the Redundancy Payments Act 1967 provides for an employee’s right to redundancy payment 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 term 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…

(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 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..

Section 12 of the Act provides for the right to redundancy payment by reason of lay-off or short time.  This section was suspended during the Covid Pandemic period, the relevant period covered by the Emergency Legislation being from March 2020 to September 2021.  The complainant in this case attempted to assert his right to a redundancy payment by issuing RP forms to the respondent after he discovered the Commis Chef was being given work and paid a rise in salary.  I note the complainant was aggrieved at certain aspects of staff being returned to work albeit temporarily and he not being returned or asked to return before March 2022.  However, as defined in the Redundancy Payments Act, the fact must arise that the 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 has decided to carry on the business with fewer employees.  In this instant case, the respondent has made it clear that the complainant’s position is still in existence, that he was requested to return to work on 23rd March 2022 and that the respondent has a requirement to fill his position.  In those circumstances, and in accordance with the definition outlined above in the applicable law, I find that the Complainant was not dismissed by the Respondent by reason of redundancy and the Complainant does not therefore fulfil the criteria to be paid a redundancy payment.  I find his claim to be not well founded.

Redundancy, Pandemic lay off, position not made redundant, not well founded.