ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046229
Parties:
| Complainant | Respondent |
Parties | Amy Connolly | La Croix Valmer Ltd |
Representatives | Self-represented |
|
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act, 1967 | CA-00057118-001 | 13/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00057118-002 | 13/06/2023 |
Date of Adjudication Hearing: 13/09/2023 and 05/12/2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Procedure:
In accordance with s 41 of the Workplace Relations Act 2015 and s 39 of the Redundancy Payments Acts 1967 - 2022 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard and to present any evidence relevant to the complaints.
The Complainant referred this complaint under the Redundancy Payment Act 1967 to the Workplace Relations Commission (WRC) on 13 June 2023. An adjudication hearing was scheduled on 13 September 2023. The Complainant named the Respondent in this complaint as ‘La Croix Valmer Ltd’ on the basis that this was the name of her employer on her payslips from 5 December 2020 until 7 July 2022. There was no appearance by or on behalf of the Respondent. I adjourned the hearing as I was not satisfied the Respondent was properly on notice of the hearing. The address given for the Respondent on the WRC Complaint form was the address of the premises which had ceased trading. The WRC issued notice of the rescheduled hearing (to take place on 5 December 2023) to the registered business address of La Croix Valmer Ltd.
A rescheduled hearing took place on 5 December 2023 at the hearing rooms of the WRC Office in Carlow. Both this complaint (ADJ-00046229) and a related complaint (ADJ-00047911) were listed for adjudication at this hearing. I verified that the Respondent had been served with notice of the time, date, and venue of the adjudication hearing. I waited some time to accommodate a late arrival. There was no appearance by the Respondent. The Respondent did not contact the WRC to indicate any difficulty with attending the hearing.
In the narrative of the WRC complaint form, the Complainant submitted that her employment was terminated on 20 January 2023 without notice. In considering whether a complaint under the Minimum Notice and Terms of Employment Act 1973 should be included, I note the complaint form is not a statutory form, and the Respondent was on notice of the complaint as detailed in the narrative of the complaint form. If a complaint is contained within the narrative of the complaint form, it is properly before me for inquiry. Section 41(5)(a) of the Workplace Relations Act 2015 confers a statutory obligation on an Adjudication Officer to whom a complaint is referred to inquire into the complaint and to decide in relation to that complaint. I am satisfied the Respondent is not prejudiced by the inclusion of a complaint under the Minimum Notice and Terms of Employment Act 1973. I have allocated the reference number CA-00057118-002 to this complaint.
The Complainant gave evidence under oath. The hearing was conducted in public.
Background:
The Complainant submits her position was made redundant on 20 January 2023 when she was informed that the business was closing with immediate effect. The Complainant submits she did not receive her statutory notice. |
Summary of Complainant’s Case:
Evidence of the Complainant (under oath) The Complainant commenced employment as a bar tender/waitress with ‘La Croix Valmer Ltd’ on 5 December 2020. She primarily worked at the ‘Morrissey’s’ (Carlow), but she was also required to work on occasion at ‘Billy Bunters’ (Carlow); ‘Morrissey’s (Abbeyleix); Morrissey’s (Portlaoise); and ‘The Creek’ (Carlow) which were different companies but all owned by the same person, Mr Tom Lennon. The Complainant submitted that The Creek was a business of ‘Cavaliare Sur Mer Ltd’. The Complainant submitted that her hours of work varied from week to week but usually she worked no less than 25 hours per week. She usually worked at Morrissey’s (Carlow) until it closed and she then worked primarily at The Creek. Morrissey’s (Carlow) was re-opened some months later and the Complainant returned to working between Morrissey’s (Carlow) and The Creek. Morrissey’s (Carlow) was then closed again, and the Complainant worked at The Creek until it was closed. On 20 January 2023 the Complainant was told that Morrissey’s (Carlow) and The Creek would not re-open and staff were to look for another job. This message was sent via WhatsApp from a manager of the Respondent business ‘Ms LS’ to the ‘Creek Roster Group’. The Complainant opened this message and several other WhatsApp messages from Ms LS and Mr Lennon to the hearing. The Complainant told the hearing that she did not know if there was a provision for lay-off in her contract of employment as she had not retained a copy of the contract of employment. The Complainant opened a WhatsApp message dated 30 March 2023 which she sent to Mr Lennon looking for a redundancy payment. Mr Lennon responded that he would ask the accountant about her entitlement to same. The Complainant opened two further messages dated 19 and 28 April 2023 in which she again asks about a redundancy payment. Mr Lennon responded to say that the accountant was working on it. On 3 May 2023 the Complainant was informed that Morrissey’s (Carlow) would reopen. On 22 May 2023 the Complainant messaged Mr Lennon asking for an opening date, to which Mr Lennon replied that he would be in contact. On 13 June 2023 the Complainant sent an RP77 to Mr Lennon. A copy of this notice was opened to the hearing. On 18 June 2023 the Complainant sent a WhatsApp message to Mr Lennon to again request a redundancy payment. On 22 June 2023 the Complainant received a message from Ms LS to say that Morrissey’s (Carlow) would re-open. The Complainant received another message from Ms LS on 4 July 2023 to say there would be a job for her. On 5 July 2023 the Complainant messaged Mr Lennon again requesting a redundancy payment. On 6 July Morrissey’s (Carlow) re-opened but closed again on 1 September 2023 and has not re-opened since. The Creek has also remained closed. The Complainant submitted that on 14 July 2022 the name of the employer on her payslips changed from La Croix Valmer Ltd to Cavaliare Sur Mer Ltd, and Cavaliare Sur Mer Ltd was the name of the employer on her payslips until her dismissal on 20 January 2023. The Complainant submitted that Mr Lennon was the owner of all the premises she worked at since the commencement of her employment in 2020 and she always reported to him. The Complainant told the hearing that she does not know why the name of the employer on her payslip was changed from ‘La Croix Valmer Ltd’ to ‘Cavaliare Sur Mer Ltd’ on 14 July 2022. She recalls being told by Mr Lennon to contact Revenue to inform it that she had started a new job with Cavaliare Sur Mer Ltd. The Complainant added that she was told to sort that out and that it was just for the payslips. |
Summary of Respondent’s Case:
There was no attendance at the hearing by, or on behalf of, the Respondent. No communication was received by the WRC from the Respondent to give a reason for non-attendance at the hearing. |
Findings and Conclusions:
CA- 00057118-001 The Redundancy Payments Acts 1967 – 2022 (“the Acts”) sets out the general right to a redundancy payment. Section 7(1) provides: “An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided— (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date”. Section 7(5) of the Acts provides: “In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) . . . .” Section 7(2) of the Acts provides: “For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to— (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed . . . .” Findings Having reviewed the payslips submitted to the WRC by the Complainant, I am satisfied that the name of the employer on the Complainant’s payslips changed from La Croix Valmer Ltd to Cavaliare Sur Mer Ltd on 14 July 2022, and that Cavaliare Sur Mer Ltd remained the employer named on the Complainant’s payslips from July 2022 until 13 January 2023 (being the date of the last payslip received by the Complainant). The Respondent did not attend the hearing. I note the registered business address for La Croix Valmer Ltd and Cavaliare Sur Mer Ltd is the same. I note that the director of both limited companies is listed as a ‘Mr Thomas Lennon’. Based on the uncontested evidence of the Complainant, I find that the Complainant’s employment was terminated by reason of redundancy on 20 January 2023. However, I am not satisfied the correct Respondent is La Croix Valmer Ltd. I find the Complainant was paid and employed by the entity named on her payslip ‘Cavaliare Sur Mer Ltd’ at the time of the redundancy. Therefore, I find this complaint against La Croix Valmer Ltd is not well-founded as La Croix Valmer Ltd is not the correct respondent. I therefore disallow the appeal under the Acts. CA-00057118-002 Section 4(1) of the Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”) provides: “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. Section 4(2)(a) of the 1973 Act provides: “The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks . . . .” Section 12(1) of the 1973 Act provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” Findings For the reasons set out above, I am not satisfied the correct Respondent in this complaint is La Croix Valmer Ltd. Therefore, I find this complaint is not well-founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2022 requires I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA- 00057118-001 I find the Complainant has not named the correct Respondent in this complaint and my decision is to disallow the appeal. CA-00057118-002 I find the Complainant has not named the correct Respondent in this complaint and I decide the complaint is not well-founded. |
Dated: 14-12-2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Key Words:
Incorrect respondent. Redundancy Payment. Minimum Notice. |