Complainant

Respondent

Parties

Amy  Connolly

Cavalaire Sur Mer Limited

Representatives

  Self-represented

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-00058881-001

18/09/2023

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

CA-00058881-002

18/09/2023

The Complainant submits that her position was made redundant on 20 January 2023 when she was informed that the business was closing with immediate effect. The Complainant submits that she did not receive her statutory notice.

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 (the Complainant was not sure of the date) 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 requesting a redundancy payment. On 6 July 2023 Morrissey’s (Carlow) re-opened but closed again on 1 September 2023 and has not re-opened since. The Creek has 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.

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.

CA-00058881-001

Law

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) . . . .”

Schedule 3 of the Acts provides in relation to continuous employment as follows:

“4. For the purposes of this Schedule employment shall be taken to be continuous unless terminated by dismissal or by the employee’s voluntarily leaving the employment . . . .”

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, I am satisfied 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).

Based on the uncontested evidence of the Complainant, I am satisfied the Complainant was not dismissed nor did she resign at any time during her employment and that her service is continuous since 5 December 2020. Therefore, I find the Complainant has the requisite continuous service (104 weeks or more) to come within the net of the Redundancy Payments Act 1967. I accept the evidence of the Complainant that she was told to look for another job in January 2023. I find the Complainant’s employment was terminated by reason of redundancy on 20 January 2023, and that at that time her employer was ‘Cavalaire Sur Mer Ltd’.

Schedule 3 of the Redundancy Payments Act 1967 identifies that, for the purposes of redundancy payments, where hours of work vary an employee’s normal weekly remuneration for the purposes of redundancy shall be taken to be the average weekly remuneration received by the employee concerned over the period of 52 weeks during which they were actually working immediately prior to the date on which they were declared redundant. The Complainant opened her payslips for the previous 52 weeks which show an average weekly rate of pay of €226.70.

I find the Complainant’s employment was terminated by reason of redundancy within the meaning of s 7(2)(a) of the Acts, and that the Complainant is entitled to a redundancy payment in accordance with the following criteria:

Employment start date: 5 December 2020.

Employment end date: 20 January 2023.

Gross weekly remuneration: €226.70.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00058881-002

Law

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

In accordance with s 4(2)(a) of the 1973 Act the Complainant is entitled to two weeks’ notice. I find the Complainant was dismissed by reason of redundancy on 20 January 2023 without notice. I find this complaint is well-founded and I direct the Respondent to pay the Complainant compensation for loss sustained of €453.40 (the equivalent of two weeks’ pay).

CA-00058881-001

I decide the Complainant is entitled to a redundancy lump sum payment under the Redundancy Payments Act 1967, in accordance with the following criteria:

Employment start date: 5 December 2020.

Employment end date: 20 January 2023.

Gross weekly remuneration: €226.70.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00058881-002

I decide this complaint is well-founded, and the Respondent shall pay the Complainant compensation of €453.40

Redundancy Payment. Minimum Notice.