Complainant

Respondent

Parties

John  O'Sullivan

Patrick Lee t/a Supersmart Drycleaners

Representatives

  N/A

 N/A

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-00051193-001

16/06/2022

In December 1999, the Complainant commenced employment as a Machine Operator, with the Respondent. The Respondent runs a dry-cleaning business. The Complainant outlined in his Complaint Form that he worked 40 hours per week, earning €445 per week. On 16 June 2022, the Complainant submitted a complaint to the Director General of the WRC, seeking a statutory redundancy payment under section 39 of the Redundancy Payments Acts 1967, as revised.

The Complainant submitted that since December 1999, he worked as a Machine Operator for the Respondent, a dry-cleaning business. He said that his last “usual” day at work was 13 March 2020, after when the Covid-19 pandemic restrictions were implemented. He submitted that he was seeking a statutory redundancy payment.

The Complainant outlined that he did not have any employment documentation. He never received a contract of employment or a handbook. He never received a payslip. He outlined that he was always paid in cash and that the pay amount was written on the accompanying envelope.

The Complainant said that after some initial difficulty, he received the Pandemic Unemployment Payment (“PUP”) from 20 March 2020 until 24 March 2022.  

During the Hearing and in response to the Respondent’s evidence, the Complainant confirmed that he worked reduced hours for the Respondent from March 2020 until September 2021. He had not kept a record of this. The Complainant disputed the number of hours which the Respondent said that he had worked and the amount of pay which the Respondent said that he had received during this time.

The Complainant submitted that in February 2022, he approached the Respondent and asked if he had a job and was told that there was no work available. The Complainant submitted that he could see from the rails that there was little business.

The Complainant outlined that he provided the Respondent with an RP9 Form to complete but received no response. The Complainant further outlined that he provided an RP77 Form to the Respondent but received no response.

The Complainant is now in receipt of a means-tested social welfare payment. The Complainant outlined his concerns that his PRSI payments are not up to date. The Complainant submitted that he never received a redundancy payment.

Mrs. Rose O’Sullivan – Witness Evidence:

Mrs O’Sullivan provided some additional details by way of assistance to the Complainant. She also outlined that in February 2022, the Complainant received a letter from the Department of Social Welfare indicating that the PUP was coming to an end.

The Respondent submitted that the Complainant had worked for him since 1999 and that they had a good working relationship.

The Respondent outlined that during the Covid-19 pandemic, his dry-cleaning business was permitted to remain open. However, he submitted that there was very little trade, as people were not going to work or socialising. The Respondent submitted that from the end of March 2020, he opened for only three days per week – Tuesdays, Thursdays and Saturdays. He said that these remain his opening hours to date. He said that during this time, he had only approximately two hours of work per week for the Complainant. The Respondent further outlined that during this time, the Complainant was paid an enhanced rate of €20 per hour. The Respondent submitted that he always paid the Complainant in cash and the amount paid was written on the accompanying envelope. The Respondent confirmed that he did not provide any payslips. During the Hearing, the Respondent provided his handwritten record of the number of hours worked by the Complainant and the amounts paid to him between March 2020 and September 2021.  A copy of this record was provided to the Complainant at the Hearing.

The Respondent submitted that the Complainant went on holiday on 18 September 2021. The Respondent submitted that when the Complainant did not return to work, he hired an outside contractor to do the Complainant’s reduced hours. This outside contractor started on 1 October 2021.

At the Hearing, the Respondent provided a copy of the RP9 Form. Under Part A, it indicates that the Complainant was on temporary lay-off from 18 September 2021. This was signed by the Respondent on 3 June 2022. Under Part B, it indicates that the Complainant was seeking a redundancy lump sum payment in respect of lay-off from 14 March 2020 until 25 May 2022. This was signed by the Complainant on 25 May 2022. The Respondent said that he had sent this RP9 Form to the Department. The Respondent outlined that he had not received an RP77 Form from the Complainant.

The Respondent outlined that the dry-cleaning business is up for sale since December 2022. The Respondent submitted that he cannot afford to pay redundancy to the Complainant at the moment.

The Respondent submitted that that the Complainant’s PRSI payments are now up to date since December 2022.

CA-00051193-001: Complaint under the Redundancy Payments Act 1967, as revised:

The Law:

The Complainant seeks a statutory redundancy payment under section 39 of the Redundancy Payments Acts 1967, as revised (the “RPA”). In order to qualify, an employee must: (1) have at least 2 years’ continuous service; (2) be in employment which is insurable under the Social Welfare Acts - this is a matter for the Department of Social Protection; (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.

The Covid-19 related lay-off payment scheme is a once-off lump sum payment for employees who have been made redundant since 13 March 2020 or are made redundant before 31 January 2025 and have lost the opportunity to build reckonable service due to temporary lay-offs caused by Covid-19 restrictions from 13 March 2020 to 31 January 2022. It is noted the Complainant was in receipt of PUP from 20 March 2020 until 24 March 2022.

Sections 11 and 12 of the RPA provide for Lay-off and Short-time:

“Lay-off and short-time.

11.—(1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.

Right to redundancy payment by reason of lay-off or short-time.

12.—(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.”

Findings and Conclusion:

The Complainant’s Employment Detail Summary for 2022 states that his commencement date of employment was 27 December 1999.

The Complainant outlined that his last “usual” day of work was 13 March 2020. He then worked for the Respondent, on a reduced hours basis or on short-time, until he went on holiday on 18 September 2021. On 1 October 2021, when the Complainant did not return to work, the Respondent hired an outside contractor.

A copy of the RP9 Form was provided by the Respondent. Under Part A, it indicates that the Complainant was on temporary lay-off from 18 September 2021. This was signed by the Respondent on 3 June 2022. Under Part B, it indicates that the Complainant was seeking a redundancy lump sum payment in respect of lay-off from 14 March 2020 to 25 May 2022. This was signed by the Complainant on 25 May 2022.

Pursuant to section 12 of the RPA, the Complainant gave the Respondent notice of his intention to claim redundancy payment on 25 May 2022. In the circumstances, the claim for statutory redundancy payment is well founded.

CA-00051193-001: Complaint under the Redundancy Payments Act 1967, as revised:

The only matter before me is whether the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act 1967, as revised. The complaint is well founded. The relevant criteria are:

Date of commencement of employment:  27/12/1999

Date of end of employment: 18/09/2021

Period of Covid-19 related lay-off: 20/03/2020 until 24/03/2022

Gross weekly pay: €445 

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts for the relevant period, being a matter for the Department of Social Protection.

Redundancy Payments Act 1967.