Complainant

Respondent

Parties

Gemma  Jamison

Camrue Catering Becketts Hotel & Restaurant

Representatives

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-00053625-001

09/11/2022

The complainant commenced employment with the respondent as a waitress on the 18th October 2015 and remained in employment up until March 2020 when the business closed on a temporary basis due to the COVID-19 pandemic.  The complainant stated that the respondent had agreed to pay her redundancy and confirmed that they would be in touch in relation to a further update on that matter but in the absence of any contact from the respondent she had no option but to submit her claim to the Workplace Relations Commission. 

The respondent is a hotel and restaurant who confirmed that the complainant had been made redundant and they did not contest the complainants’ claim however, the respondents’ position was that they were unable to pay the amount due. 

The complainant stated that she has commenced employment with the respondent in October 2015 and that the company had shut down due to COVID-19 in March 2020.  The complainant submitted that she was working on average 20 hours per week.  She stated that she had contacted Ms VG in relation to redundancy when she had not heard anything further from the company by the autumn of that year.  She stated that Ms G had agreed that they would settle the matter of redundancy and would be in contact but that she had heard nothing further.  She confirmed that when she received no further contact, she made contact again but that it had not proven possible to resolve the matter between her and the respondent.  She stated that as far as she was aware, the company was still active but that she had not heard anything further in relation to the status of the company. 

The respondent confirmed the details set out by the complainant in her complaint and her further elaboration of that statement at hearing.  She said that initially the company had hoped to resolve the matter with employees however she confirmed that the premises was still closed and that as a consequence the business was not in a position to pay the redundancy payments due.  She confirmed that the complainant had commenced employment on the 18th October 2015 and that her employment had terminated on the 15th March 2020.  She confirmed that her understanding was that the complainant was working an average of 16 hours per week. 

I considered carefully the complaint form submitted by the complainant and the oral evidence from both parties at hearing.  I noted that there was no dispute between the parties in relation to the duration of employment (employment commenced on the 18th October 2015 and terminated on the 15th March 2020), nor in relation to the entitlement of the complainant to redundancy payment based on that employment.  I noted the respondent financial position as outlined above and I noted that the respondent did not provide any supporting evidence of financial position outlined at hearing.  Nonetheless and the fact that the business remains closed, is a strong indicator that the respondents’ financial position is somewhat ambiguous at least. 

I noted that the respondent was somewhat unclear in relation to the impact of the extended layoff arising from COVID in terms of redundancy and unclear in relation to their obligations to the complainant in that regard.  However, notwithstanding any confusion that may have arisen, it is clear to me that the complainant has an entitlement to redundancy payment.  I accepted the respondents’ bona fide in relation to the ongoing closure and its impact on the financial position of the business at that time.  I noted that the complainant made several attempts to engage with the respondent in relation to her return to work and her redundancy and that she had a real expectation that she would be returned to work following the re-opening of the hospitality sector.  I accept that when this did not happen, she then made contact with the respondent seeking clarification but did not receive a response and, in those circumstances, she submitted her complaints to the Workplace Relations Commission. 

At the hearing the complainant confirmed that while she understood her employment to be terminated by the employer, she would formally confirm her resignation post hearing.  The respondent agreed to this course of action in circumstances where no real expectation of re-employment existed.

I noted that section 24 of the act provides that “an employee shall not be entitled to a lump sum” unless they have a further complaint within 52 weeks of the date of termination of employment and I noted that the complainant had submitted her complaint within that timeframe. 

Section 12 (2) (a)  of the Redundancy Payments Act states that an employee claiming redundancy in a layoff situation must show “he has been laid off or kept on short time for four or more consecutive weeks of which the last before the service of notice ended on the date of service thereof or ended not more than four weeks before that date, or (b) he has been laid off or kept on short time for a series of six or more weeks (of which not more than three were consecutive) within a period of 13 weeks, or the last week of the series before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date”.

Based on the foregoing it is clear that the complainant has an entitlement to redundancy based on her service in employment with the respondent and I so find.

At hearing I asked the parties to provide details of average working hours to the WRC post hearing, in order to determine entitlements and both parties agreed to this course of action.  Post hearing the complainant provided copies of her earnings with the respondent from the commencement of her employment until her last date of employment.

The respondent also provided an email confirming that her average working hours per week was

 Hours.  In addition, the respondent confirmed that they were in receipt of the complainant’s resignation but upon advice was declining to accept the resignation. 

In my view the above is an action taken post hearing and as such does not fall within the scope of the complaint before me.  In that context I am not taking it into account in my decision making.

I noted that the parties agreed at hearing to proceed with making an application for the statutory redundancy payment from the National fund, pending the provision of this decision.

Based on the findings outlined above it is my decision that the complainants’ case is well founded.  In these circumstances it is my decision that the complainant should be awarded her statutory redundancy entitlement.

I noted that the complainant was in receipt of average gross pay amounting to €193per week, worked an average of 16 hours per week and had 4.41 years of service at the date of termination of her employment.  On this basis I find that she is entitled to a statutory redundancy payment of €1895.26.

Furthermore, the respondent is instructed to cooperate with the complainant in the provision of all necessary paperwork to enable the complainant to claim her statutory redundancy entitlement from the Redundancy Payment Scheme.