ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00034654

Parties:

	Complainant	Respondent
Parties	Eddie Finlay	Bradpower Limited

Representatives

Self Represented

Self-Represented (Not present at 2nd Hearing)

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-00045384-001	27/07/2021

Date of Adjudication Hearing: 8/9/2022 and 28/03/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

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

Background:

The Complainant alleged he was made redundant by the Respondent and that no transfer of undertaking had taken place to a new employer and he was entitled to his redundancy payment. The Complainant had no contact with the new employer or ever worked for the new employer.

Summary of Complainant’s Case:

The Complainant was asked to meet the owner by text on October 9th 2020 which he did that day. He was handed a completed and signed RP50 form and advised to send it to the Redundancy and Insolvency Section of Social Welfare. He was advised the form submitted was out of date. He received a new RP50 form completed and signed by the Owner on November 24th 2020 which he sent to the Redundancy and Insolvency Section of Social Welfare on February 10th 2021. The Complainant received a phone call from the Owner of the Respondent on February 18th 2021 saying to forget about the redundancy as a new owner had taken over the business. The Complainant was not hired or had any contact with the new Owner and sought redundancy from the Respondent.

Summary of Respondent’s Case:

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on July 27th 2021 alleging that his former employer contravened the provisions of the Redundancy Payments Act 1967 in relation to him. The said complaint was referred to me for investigation. The Respondent was present at the initial hearing and following the presentation of the Complainants case they requested an adjournment to prepare a detailed legal defence that the Respondent was not the employer of the Complainant when he was made redundant and a transfer of undertaking had taken place and another employer was the employer responsible for any redundancy payment, if due. The Respondent relied on correspondence at the first hearing that a transfer of undertaking had taken place. The Respondents Accountant corresponded with the WRC and stated the Complainant received a redundancy notice in error which was later withdrawn from the Department of Social Protection. The Accountant advised the property where the business was situated and related business was put into Receivership and sold as a going concern to a third party and that was explained to the Complainant and he was informed to contact the new owner/operator of the licenced premises in regard to his continued employment as set out under employment legislation An adjournment was granted to the Respondent to prepare his reply to the complaint. No submission was received by the WRC from the Respondent subsequent to the Hearing on September 8th 2022. Between the first and second hearing the Respondent was asked by the WRC to clarify his email and address which he did. The notice of the Hearing for March 28th 2023 was sent to both on January 31st 2023. A second Hearing for the purpose of investigating the complaint was held on March 28th 2023. When requested to provide details of who will be attending the Respondent, via a different email, emailed the WRC on March 23rd 2023 stating the notice was too short and his Accountant was on vacation and looking for a rescheduling. There was no appearance by or on behalf of the Respondent at the Hearing or a request for a postponement entered at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the second Hearing to investigate the complaint would be held and were not present at the Hearing.

Findings and Conclusions:

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.

I am satisfied from the evidence presented that no transfer of undertaking to a new employer has taken place and the Respondent is liable for the Complainants redundancy payment.

I am satisfied from the evidence that the Complainants situation complies with section 7 (2) (b) of the Act.

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 uncontested evidence of the Complainant I allow the Complainants appeal and I award him 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; March 9th 2011.

Date of Reckonable Service for Redundancy Payment Ceasing on: October 9th 2020.

Gross Weekly Wage: 336.20 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

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.

I allow the Complaints Appeal

Dated: 12th April 2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy