Complainant

Respondent

Anonymised Parties

An Employee

A Student Placement Service

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-00049285-001

22/03/2022

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

CA-00049285-002

22/03/2022

The Complainant was the sole employee of the Respondent, which was headed up by a single Director/Owner.  The parties had an excellent working relationship. In March 2020 the Respondent’s business was shutdown as a result of the restrictions created by the Covid-19 pandemic.

The Respondent had become insolvent during the course of that pandemic and has essentially stopped trading. It is currently in advanced talks with their bank about an agreement to wind down.

The Respondent was represented by the Owner/Director’s husband as she herself was too unwell to attend the hearing. The Complainant attended the hearing accompanied by a friend.

The Respondent requested that the matter be heard in private due the potential for sensitive medical information to be presented during the course of the hearing as well as third party financial information.

In the circumstances I agreed to the request.

The Complainant argues that she is entitled to a statutory redundancy payment and a notice payment as a result of her service.

She acknowledges the excellent working relationship between the parties but over the course of the pandemic communication from the Respondent became sporadic and she was unsure of where she stood.

The Respondent stressed that they are a small company which was effectively shutdown as a result of the Covid-19 restrictions.

They regret the situation and they have suffered a significant setback both in health and financial terms.

It has always been their intention that the Complainant should receive her statutory entitlements.

The parties agreed that the Complainant is entitled to a statutory redundancy payment.

They further agreed the following key matters.

The Complainant began working for the Respondent on the 2nd of February 2008. She was paid approximately €635 per week gross.

On the 27th of March 2020 the Complainant was placed on unpaid layoff.

On the 2nd of February 2022 the Complainant submitted an RP70 and requested a redundancy payment, this was not paid.

Section 12 of the Redundancy Payments Act states as follows:

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.

I am satisfied that the Complainant had the requisite service to be covered by the Redundancy Payment Acts.

I am satisfied that the Complainant had been laid off for period of more than 4 weeks.

I am satisfied that the Complainant gave the Respondent notice of their intention to claim redundancy on the 2nd of February 2022.

I conclude that the contract of employment terminated on the 9th of February 2022 and that the Complainant became entitled to a statutory redundancy payment from that date.

With regard to the Complainant’s claim for minimum notice I refer to Section 4.(1) of the Minimum Notice and Terms of Employment Information Act.  Namely that : An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

In this matter the termination was not initiated by the employer but the employee. In

Particular I refer to the first schedule of the Minimum Notice and Terms of Information Act. Section 5 of which states:

An employee who claims and receives redundancy payment in respect of lay-off or short time shall be deemed to have voluntarily left his employment.

While the first schedule of the Act refers only to calculation of service it is informative as to how the act sees the termination of employment by way of an employee submitting an RP70.

In the circumstances I conclude that the Complainant is not entitled to a minimum notice payment. 

CA-00049285-001

I find that the complaint is well founded. The Complainant is entitled to a statutory redundancy payment under the Redundancy Payment Acts 1967 – 2014 based on the following criteria:

That the Complainant commenced employment with the Respondent on 2nd of February 2008

That the Complainant was placed on unpaid lay-off on the 27th of March 2020 which lasted until her termination.

That the Complainant’s employment terminated on the 9th of February 2022.

That the Complainant’s gross weekly wage was €635

CA-00049285-002

I find that this complaint is not well founded.