ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037353
Parties:
| Complainant | Respondent |
Parties | Lisa McRae | Whyte Swan Developments Limited Lawless Hotel |
Representatives | South Leinster Citizens Information Service | The Respondent did not attend the 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-00048702-001 | 18/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00048702-002 WITHDRAWN | 18/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00048702-003 WITHDRAWN | 18/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00048702-004 WITHDRAWN | 18/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00048702-005 WTHDRAWN | 18/02/2022 |
Date of Adjudication Hearing: 31/03/2023
Workplace Relations Commission Adjudication Officer: Eileen Campbell
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. In the instant case there was one party only as the Respondent did not attend. The hearing was conducted in person in Lansdowne House. The hearing was held in public pursuant to section 39(17A) of the Redundancy Payments Acts 1967, as inserted by the Workplace Relations (Miscellaneous Provisions) Act 2021.
I explained the procedural changes arising from the judgment of the Supreme Court in Zalewski v. An Adjudication Officer, Ireland and the Attorney General [2021] IESC 24 in April 2021. No application was made that the hearing be conducted other than in public. The Complainant agreed to proceed in the knowledge that a decision issuing from the WRC would disclose her identity. The Complainant gave her evidence on affirmation.
While the parties are named in the Decision, I will refer to Ms Lisa McRae as “the Complainant” and to Whyte Swan Developments Limited Lawless Hotel as “the Respondent”.
The Complainant attended the hearing and represented by South Leinster Citizens Information Service. The Respondent did not attend and was not represented at the hearing.
At the time the adjudication hearing was scheduled to commence, it became apparent that there was no appearance by or on behalf of the Respondent. The Respondent Company is registered on the CRO website. The Respondent had been properly served with notice of the time, date and venue of the adjudication hearing at the address to be found on the CRO website. All correspondence from the WRC to the Respondent on this matter has been returned unopened. Notwithstanding, I waited some time to accommodate a late arrival. I then proceeded with the hearing in the absence of the Respondent.
No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.
At the outset the Complainant confirmed CA-00048702-002, CA-00048702-003, CA-00048702-004 and CA-00048702-005 respectively are to be formally withdrawn.
I can confirm I have fulfilled my obligation to make all relevant inquiries into this complaint.
Background:
This matter came before the WRC dated 18/02/2022 as a complaint submitted under section 39 of the Redundancy Payments Act, 1967. The Complainant commenced employment with the Respondent on 23/05/2016. The Complainant was laid off on 12/03/20. The Respondent is a hotel providing accommodation, bar and restaurant facilities situate in the village of Aughrim in Co Wicklow. The Complainant was initially employed as a bar person, but she fulfilled many roles associated with the smooth running of a small hotel ranging from food preparation in the kitchen to administrative functions in the office as and when required. This complaint for statutory redundancy arises in circumstances where the Complainant was laid off due to Covid-19 restrictions and she has neither received payment of a statutory lump sum nor confirmation of a return to her former role. It would appear the Respondent no longer operates in the hotel industry and the hotel building is now unoccupied. |
Summary of Complainant’s Case:
The Complainant gave evidence the Respondent business closed on or about 15/03/2020 in line with all businesses in the hospitality sector on foot of restrictions imposed in an attempt to halt the spread of Coronavirus. There was a government mandated closure order for restaurants, hotels and bars. The Complainant was put on temporary lay-off along with thousands of others working in the hospitality sector. There were indications mid-year the sector might be permitted to reopen albeit in a very limited and restricted capacity. Accordingly, the Complainant submits in July staff were requested to attend at the hotel premises for a training session to brief them on the protocols around the proposed restricted reopening for business. The Complainant submits that as far as she is aware the Respondent business never opened its doors to the public again after they were first closed on or about 15/03/2020. The Complainant submits she made several attempts to contact the Respondent as time went by and there was no further communication from the Respondent. On 15/10/2021 the Complainant submitted an RP77 to the Respondent and it was returned unopened from the business address of the Respondent as provided on the CRO website which is the address of the hotel itself where the Complainant was employed.
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Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent at the hearing. I note the Respondent has not engaged with the WRC or filed any written submissions or documentation. In the circumstances no evidence has been proffered on behalf of the Respondent. |
Findings and Conclusions:
CA-00048702-001 This complaint is for a statutory 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 2 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. However, while lay-off is non-reckonable service, the Covid 19 related lay-off payment scheme is a once off lump sum payment for employees who have been made redundant since 13/03/20 or are made redundant before 31/01/25 and have lost the opportunity to build reckonable service due to temporary lay-offs caused by Covid 19 restrictions from 13/03/20 to 31/01/2022. Section 12A of the Redundancy Payments Acts 1967 was inserted by the Emergency Measures in the Public Interest (Covid 19) Act 2020. This temporarily suspended section 12 of the 1967 Act in respect of an employee who has been laid off or kept on short time due to the effects of measures required to be taken by his or her employer in order to comply with government policy in respect of Covid 19. This emergency measure applied from March 2020 until 30/09/2021 and effectively placed an embargo on an employee on triggering a redundancy on foot of a lay-off. Section 12 of the Redundancy Payment Act 1967 as amended states: Right to redundancy payment by reason of lay-off or short-time.
(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 Complainant in the within case was employed by the Respondent from 23/05/2016 and she was laid off from 12/03/2020 due to Covid-19 restrictions. At the material time the Complainant was paid €588.00 gross weekly. Not having received either confirmation of a return to her position or a statutory lump sum payment the Complainant served an RP77 on the Respondent pursuant to section 12 of the Redundancy Payments Act 1967 on 15/10/2021 after the embargo on so doing had been lifted. The complainant did not receive a counter-notice within the requisite 7-day period pursuant to section 13 of the Act. I am satisfied the Complainant has met the conditions pursuant to section 12 and has notified the Respondent of her intention to claim redundancy as set out at section 12(2) and subject to 1 week’s notice to the employer. The Respondent did not attend the hearing. There was no evidence adduced at hearing that the form RP50 had been completed by the parties or submitted to the Department of Employment and Social Protection (DEASP) for a redundancy payment. I am satisfied that the Respondent has not paid any monies to the Complainant in respect of her redundancy at the date of hearing. Based on the Complainant’s cogent evidence as confirmed with supporting documentation I am satisfied the Complainant meets the criteria required to entitle her to a payment of a statutory lump sum pursuant to the Redundancy Payments Acts 1967 – 2014. Accordingly, I decide this complaint to be well-founded. The Complainant is entitled to a redundancy payment based on the following facts established in evidence: Commencement of employment date: 23/05/2016 Termination of employment date: 22/10/2021 (allowing for 1 week’s notice) Period of Covid 19 related lay-off: from 12/03/2020 – 15/10/2021 Gross weekly pay: €588.00 The Complainant was made aware of the fact any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 – 1966. The calculation of gross weekly pay is subject to a ceiling of €600. The calculation of the lump sum is a matter for the relevant Department.
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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 Complainant’s appeal against the failure of her employer to pay a redundancy. I decide the within complaint is well-founded. Accordingly, I decide that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act, 1967 based on the following criteria:
Commencement of employment date: 23/05/2016
Termination of employment date: 22/10/2021
Period of Covid 19 related lay-off: from 12/03/2020 – 15/10/2021
Gross weekly pay: €588.00
This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Dated: 21st April 2023
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Key Words:
Claim for statutory redundancy; no show respondent; |