Complainant

Respondent

Parties

Eimear  O'Dwyer

Whyte Swan Developments Limited Lawless Hotel

Representatives

South Leinster Citizens Information Service

The Respondent did not attend the hearing.

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-00048703-001

18/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048703-002 WITHDRAWN

18/02/2022

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 01/10/2016.  The Complainant was laid off on 14/03/2020.  The Respondent is a hotel providing accommodation, bar and restaurant facilities situate in the village of Aughrim in Co Wicklow.  The Complainant was employed in general house-keeping duties.   

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. 

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.  

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. 

CA-00048703-001

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.

1. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(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 was employed by the Respondent from 01/10/2016 and she was laid off from 14/03/2020 due to Covid-19 restrictions.  At the material time the Complainant was paid €252.50 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:  01/10/2016

Termination of employment date: 22/10/2021 (allowing for 1 week’s notice)

Period of Covid 19 related lay-off:  from 14/03/2020 – 15/10/2021

Gross weekly pay: €252.50

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. 

Claim for statutory redundancy; no show respondent;