ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033966

Parties:

	Complainant	Respondent
Parties	Robert Osowicz	Rathkeale House Hotel

Representatives

Complaint:

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-00041746-001	31/12/2020

Date of Adjudication Hearing: 11/02/22 and 02/02/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.

I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.

A complainant must be able to show a minimum two years (104 weeks) of service in the employment.

Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).

In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission. In this instance the Employee was obliged to initiate a claim before the WRC when his Employer (the Directors) failed to discharge the Statutory obligation.

The Employee must have made a claim for a redundancy payment from an employer by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the Complaint being made by the Complainant in his preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought i.e. the Complainant.

Summary of Complainant’s Case:

The Complainant attended without representation. The Complainant was assisted by an Interpreter provided by the WRC. The Complainant is looking for a Redundancy payment after his employment of four years was abruptly ended in December of 2019. At that time the Respondent, a Hotel, was closed down. The Complainant had been out on an extended period of sick leave when the company closed down.

Summary of Respondent’s Case:

There was no appearance by or on behalf of the Respondent at the second date of hearing. An appearance by AM on the first day was an appearance made by the company which subsequently opened the hotel and was unrelated to the employment under consideration.

Findings and Conclusions:

I have carefully considered the Complainant ‘s application herein.

The Complainant had worked one day a week for the Respondent Hotel for a number of years having commenced in 2015. In 2019 the Complainant went out on an extended period of sick leave, but fully intended returning to the workplace when he recovered. Unfortunately, the Respondent Hotel was closed down in December of 2019. There was some communication between the Director of the Hotel and the Complainant, but no redundancy payment was ever made.

The Complainant has been obliged to secure his entitlements by application to the Workplace Relations Commission. The Complainant forwarded the relevant P60s for his time in this employment. I am satisfied that the Complainant has named his correct Employer as Rathkeale House Hotel (Having a Reg No of 8754760B).

The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 applies.

The Complainant worked in excess of two years with the Respondent. I am extending the time for bringing the claim as the Complainant has demonstrated reasonable course. I accept that the Complainant’s job was made redundant, and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00041746-001 – I accept the Complainant’s complaint is well founded and he is entitled to an award under theRedundancy Payments Acts based on the following facts:

The employment started: 2nd Feb 2015

The employment ended: 31st December 2019

Gross weekly wage : €110.00

Dated: 20-02-2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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