ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037890
Parties:
| Complainant | Respondent |
Parties | Rose McCarthy | Kerry Delicatessens Limited |
Representatives | Kate O'Shea Solutions | Peninsula Group Limited |
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-00049298-001 | 23/03/2022 |
Date of Adjudication Hearing: 21/09/2022
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint
Background:
I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities.
The Complaint Form was received on 23 March 2022.
The Complainant swore an affirmation. Alan O’Sullivan, Director appeared as a witness for the Respondent and swore an affirmation.
Both parties were given an opportunity to present their evidence on oath, cross examine and re-examine.
Submissions were filed by both parties.
At the hearing it was agreed between the parties that she worked 30 hours and earned a weekly gross wage of €362.00. |
Summary of Complainant’s Case:
Background The Complainant worked as a Restaurant Manager with the Respondent. She commenced employment on 29 March 2011, and she ceased her employment with the Respondent on 23 April 2022. On 8 February 2022 she served a signed RP9 to the Respondent as notice of her intention to claim redundancy payment in respect of lay off from 24 December 2020 to an unspecified date. Preliminary Issue The Complainant’s representative raised an issue regarding the timing of the submissions received from the Respondent. She did accept that the Complainant did not suffer any prejudice because of the delay in receiving the submissions. The Respondent raised an issue as regards the timing of the Complainant’s application. In response the Complainant submitted that she was within time to refer her complainant to the Workplace Relations Commission as her last day of work was 24 December 2020 with the RP50 Form dated 8 February 2022 and complaint dated 23 March 2022. It was submitted that the Complainant was not in full employment from December 2020 to February 2022 as she was in receipt of the Pandemic Unemployment Payment. It was submitted that the Redundancy legislation had been suspended and she was prevented from making a claim before September 2021 as this was a protected period. She continued in good faith for a definite answer from the Respondent until 8 February 2022 when she submitted her intention to claim redundancy to the Respondent. Complainant’s Evidence The Complainant began her evidence by stating she had a very good working relationship with the Respondent. On 24 December 2020 she was laid off due to Covid and expected the business to reopen on 5 July 2021. She stated that she was aware the Government changed the reopening date, but the preparation was in place for the business at that stage. It was the Complainant who informed the staff two week before the business was due to reopen. The Complainant received a phone call from Mr O’Sullivan at the end of July stating that he was going to open the premises in Killarney in July, and he would review the situation in September when things calmed down. The Complainant accepted that she was offered employment in Tralee, but it was 33km away from her home and due to her family situation, she needed to be near home. She outlined in her evidence the reasons for her requirement to be in Killarney. The Complainant gave evidence of exchanging 100 Whatsapp messages with the Respondent with 60-65 of those sent between June and December 2021 with 5 being work related and 16 messages to do with the upkeep of the building. In October 2021 she met with Mr O’Sullivan in Tralee as she had an appointment in the town. It was her evidence that the purpose of the meeting was “in general to say hello” but she did ask what his plans for Killarney were? She said it was Mr O’Sullivan’s response that he would open the restaurant, but he was unsure when. She received a follow up message from Mr O’Sullivan that day. When asked if it was a private meeting, the Complainant said that it was not, he was working behind the deli and they did not sit down. The Complainant described a second meeting with Mr O’Sullivan in November 2021 where there was general chit chat but also discussed offering her alternative work in Tralee. The Complainant gave evidence that Mr O ‘Sullivan said he legally had to offer her a job I Tralee or wait for Killarney to open. He told her that he did not have a re-opening date. The Complainant’s evidence was she felt the Respondent knew what was happening with Killarney as he set out different ideas he had. She described leaving the meeting very confused. The Complainant sent an email to Mr O’Sullivan on 6 December 2021 stating that she was disappointed that the business in Killarney was not opening in the near future. She states “I understand that you have offered me employment in Tralee, but I cannot see how this position will work for me.” The Complainant went on to outline that she only had one family car and it was required for the family. She acknowledged that the Respondent had offered to cover the cost of fuel but there was the “added cost of maintenance” of the car. The Complainant continued asking about how her position of Manager would work alongside the Manager in the Tralee store and what would be her remit alongside the current Manager. The Complainant acknowledged that the Respondent spoke about the potential for a new set up in Killarney but voiced her concern as to her position. She asked for a definite timeline. She ended the email that she wanted this to be dealt with as soon as possible. The Complainant gave evidence that Mr O’Sullivan called her after receiving the email. She raised the issues in her email with him and in response to the car maintenance he replied it was nothing to do with him and she could get a bus or train to Tralee. She said there was still no definite timeline and that he would be meeting builders in January. She felt she was left in limbo. By 8 February 2022 she describes feeling “fairly frustrated”. It was her evidence that she was not offered the project manager’s job as she would have jumped at the chance, if offered. She said she was sitting and waiting for a job and had lot trust in the fact that she was being told since July 2021 that the business will be re-opening. The Complainant was cross examined by the Respondent’s representative and confirmed she was in receipt of the PUP from December 2020. The Complainant also confirmed that she continued to pick up post and look after the building after that date but was not paid for it. It was put to the Complainant that there was extensive communication between her and the Respondent noting 65 text messages between June – December with very regular messages, regular communication. The Complainant respondent that issues were raised in phone calls and between June – December there was very little communication about work, it was more friendly communication. She was asked if she had issues with her employment was there not an opening to raise them with the Respondent? The Complainant confirmed she received the PUP until November 2021. She was asked if there was little difference between her wages for 20 hours she worked and the PUP. The Complainant responded that she wanted to go back to work. The Complainant accepted that she was offered work in Tralee from mid-2021 and this offer was repeated. She stated that Mr O’Sullivan accepted it didn’t suit me. When asked about the offer of travel expenses in 6 December 2021 email, she said that offer only came in November 2021. When asked about the offer of flexibility of days and hours, the Complainant accepted she was offered hours that would have suited her but it all came down to family circumstances. Asking about the offer of project manager at the 8 February 2022 meeting, the Complainant said she was not offered it. An email of 16 and 28 February 2022 from Respondent to Complainant you were offered a job; “ To give you an update the Killarney store is expected to have work on the 21st March but as I’ve mentioned if you require work immediately there is availability in Tralee now for you.” It was the Complainant’s evidence that there was no further contact from Mr O’Sullivan regarding hours or roster. When asked if she had claimed redundancy at that stage, the Complainant stated “the trust was gone “ It was put to the Complainant that she gave evidence that the Respondent was “pretty honest, that he did not know when the business was reopening” to which she replied she had “no confidence in him”. When asked why she continued to hold the keys of the premises, she replied that she was not asked for them. It was put to the Complainant that it looked like she had hope of returning to her job if she retained the keys to which she replied, “there was always hope”. The Complainant was asked if she had already decided about redundancy before the meeting on 8 February 2022, but she denied stating it was not a snap decision. She said Mr O’Sullivan did not have a definite date and the business was not fundamentally the same when it did reopen. The Complainant said the hours of work were different but did accept this was only for the summer season and open to change. The Complainant gave evidence that she was currently employed for 18.5 hours per week at a rate of 10.21 since 30 April 2022. The Complainant upon re-examination stated that she raised her issues with the Respondent via phone calls and in their meetings in Tralee. She confirmed she would return the keys. The Complainant was asked why she did not raise her family situation in her email of 6 December 2021 to which she replied that she felt Mr O’Sullivan knew about her family. She confirmed she was aware the business was closed through the period she complained of. The Complainant confirmed she signed the RP9 form on 8 February 2022 on the same day she had the meeting with Mr O’Sullivan at 10am that morning. She further confirmed that she did not raise the issue of redundancy at the meeting on 8 February 2022 as she was hoping he would have a definite date. Mr O’Sullivan said he met with the builders and there was no redundancy. |
Summary of Respondent’s Case:
Preliminary Issue It was submitted by the Respondent that the complaint was not issued with the statutory period of 12 months as per section 24 of the Redundancy Payment Acts 1967 – 2014. It was noted there was no application to extend time. It was submitted that the Complainant’s final day at work was the 24 December 2020, therefore, any claim for redundancy ought to have been made before the 23 December 2021. The Complainant served the RP9 form by email on the 8 February 2022 which is outside the prescribed statutory time limit. The Respondent relied on the Labour Court decisions of Brian Cahill t/a Jerpoint Inn and Helen Greene RPD 1710, Patrick Hoare & Sons Limited and Liam Donnelly UDD 173and Cementation Skanska (formerly Kvaerner Cementation) Limited and Michael McGrath DWT 034. The Respondent argued in response to the suspension of the relevant sections of the Redundancy legislation as a consequence of the Covid19 pandemic under Section 29 of the Emergency Measures in the Public Interest (Covid -19) Act that the emergency period was from 13 March 2020 to 30 September 2021. Following the expiration of the legislative emergency period, the Complainant remained on the PUP up to November 2021. There was evidence of ongoing communication and meetings between the parties as to the status of the business. Her colleagues had taken up alternative roles in the Tralee store with others returning to the business in Killarney once it was re-opened. It was the Respondent’s submission that she had from 30 July 2021 to 30 December 2021 to file her complaint. From 30 December 2021 she had no further or different knowledge to the time she filed her RP9 form on 8 February 2022. In conclusion it was submitted that the test is objective and not subjective as to when an employee considers herself redundant. Background The Respondent is a family business across three sites with Mr O’Sullivan being a director. Mr O’Sullivan gave his evidence the hearing as follows; the restaurant in Killarney is a very narrow site with seating capacity reduced from 80 to 40 people when the Covid19 restrictions were in place. The restaurant closed with little notice from the Government on 24 December 2020 as a result of the Covid19 pandemic with no idea of a re-opening date. In December 2020, the Respondent did not want to lose staff and tried to accommodate them as much as possible. Some of the staff worked in the Tralee hotel which opened in June 2021 as it had an outside area. Staff who continued to work in the alternative business were working for three days but paid for four days as well as other accommodations being made for travel. The Complainant was offered the same as her colleagues, Mr O’Sullivan noted when asked. It was his evidence that the Complainant only one family car, which she made him aware of and he was happy to accommodate her hours. However, the Complainant stated she wanted to be in Killarney for family reasons. However, due to the uncertainty and time of the year being in the middle of the tourist season, it was decided not to reopen the Killarney site. Mr O’Sullivan outlined the financial situation of opening the Killarney restaurant at that time of year with the ongoing Covid19 restrictions in place. It was accepted the Complainant was in and out of the property in Killarney over the period the business was closed. Mr O’Sullivan gave evidence regarding the meeting he had with the Complainant in mid-October 2021 when they sat at the bar. He described it as a casual meeting. The Complainant had a hospital appointment and he understood that she dropped in. The Respondent did not that he could not give a date at that point. There was another meeting in November 2021 where he explained there was work available as they needed people for the Christmas period but there was no re-opening date for Killarney. In February, he met with the Complainant and her representative and explained that he wanted to give her a start date rather than a re-opening date and would she project manage the re-opening. Mr O’Sullivan noted there was no mention of redundancy at that meeting but hours later was served with a RP9 form. He was very surprised to receive the papers. Mr O’Sullivan confirmed that the Complainant’s pension continued to be paid by the Respondent to this day in the sum of €130 per month. This was evidence that he believed her job had not been made redundant. The restaurant opened in June 2022, and it was Mr O’Sullivan’s evidence that there was a role for the Complainant to project manage the re-opening in terms of recruitment, managing the building, liaising with the HSE and addressing any safety issues. The business moved away from coffee when it reopened, instead focusing on the evening trade. In response to travel between the business, Mr O’Sullivan said it was custom and practice over the years with chefs and staff travelling between sites to cover annual leave. He accepted that the Complainant generally did stay in Killarney but would have met with the staff in Tralee and had come to Tralee “once or twice”. The Complainant’s representative cross examined the Respondent asking if the Complainant was a loyal and dedicated employee; Mr O’Sullivan agreed she was. When asked what notification was given re temporary layoff, Mr O’Sullivan stated it was mainly driven by the Government imposed restrictions with the latest being on 24 December 2020. The staff were given a letter on that date. When asked about reopening in the summer of 2021, Mr O’Sullivan stated that it was mid-season in Killarney and there were tiredness considerations given to this in addition to the need for social distancing as well as the overall business model. When asked about his communication with staff, Mr O’Sullivan said there were ongoing meetings, with a date of July 2021 with named staff identified. He said there was also text messages between the parties, but the Complainant never came to him and said she had a problem. This was disputed by the Complainant. Describing the conversation in November 2021, Mr O’Sullivan said they had a coffee together in Tralee and he offered her a job in Tralee, in one of the three sites or was happy if she wanted to wait until Killarney reopened. The Respondent was questioned around the Complainant’s particular family circumstances, and he said he was aware of her family situation. Mr O’Sullivan said in response he offered her a job if she wanted or he was happy for her to remain on lay off until Killarney reopened, it was her choice. Mr O’Sullivan agreed he received a letter in January 2022 from the Complainant’s representative requesting a meeting. When asked if there was a response, he said he called the Complainant, and a meeting was arranged for 8 February 2022. It was Mr O’Sullivan’s evidence that he offered the Complainant a project manager role at that meeting and there was no mention of redundancy. The next communication was later that same day which was an email from the Complainant’s representative with the RP9 Form attached. He said he replied to that email on 16 February 2021 via email at 8.21pm stating there was work available in Tralee and the Killarney business will be reopening on 21 March 2022. Mr O’Sullivan the last communication was dated 28 February 2022. He accepted that he did not put the Complainant on the roster for the 21 March 2022 as he had not heard from her since February. Further comments were put to Mr O’Sullivan regarding the Complainant’s family circumstances. When asked about the reopening, Mr O’Sullivan the business reopened with new hours over the summer season with new hours. When it was put to him that the Complainant rarely worked evenings and her hours were 9 -5pm , he replied she worked a lot of hours over the summer season including evenings. It was further submitted by Mr O’Sullivan that the business opened on 4 June 2022 with the builders commencing work in late March 2022. Employment recommenced in the premises from 1 June 2022. Mr O’ Sullivan gave evidence that the Complainant was not made redundant, and her job was still available. Evidence was referred to that the Complainant’s Employer pension contributions continued to be paid. |
Findings and Conclusions:
Preliminary Issue The Respondent raised an issue around time and the jurisdiction of the WRC to hear this claim. In the first instance it argued that she was out of time on the basis Section 24 of the Redundancy Payment legislation provided for a period of 52 weeks from the date of termination to file a complaint with the WRC. The Respondent submitted that time started running from 24 December 2020 on the Complainant’s “final day of work”. However, Section 24 (b) specifically provides for time to run from the “(b) the employee has made a claim for the payment by notice in writing given to the employer,” which in this case was the date the RP9 Form was submitted, i.e. 8 February 2022. The Complaint Form was received by the WRC on 23 March 2022. Consequently, I find the Complainant is within the time provided for in Section 24 of the Redundancy Payment Acts. Notice Period and Counter Notice Having carefully considered the evidence and the facts of this case, it simply comes down to the application of the law on redundancy and the time limit prescribed by the Redundancy Payment Acts. The Complainant submitted the RP9 Form to the Respondent on 8 February 2022 as notification of her intention to claim redundancy following expiration of a period of four consecutive weeks of being on lay off. Section 13 of the Redundancy Payments Act 1967 allows for an employer to serve counter notice on an employee within 7 calendar days” in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.” 16 February 2022 the Respondent confirming that work was available for the Complainant advised her; ‘We have work in Tralee for the immediate future and a return to Killarney from the 21st of March.’ This counterclaim was sent to the Complainant in an email rather than completing Part C of the RP9 Form. The 7 calendar days as specifically required by Section 13 had passed by Wednesday 16 February 2022. Consequently, the Complainant is entitled to redundancy payment however, as she is considered to have voluntarily resigned, she is not entitled to her notice period pursuant to the Minimum Notice and Terms of Employment Acts, 1973 to 2001. |
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.
I find the Complainant is entitled to redundancy payment pursuant to the Redundancy Payment Acts 1967 – 2012 on the following basis: Start Date: 18 March 2011 End Date and Termination Date: 8 February 2022 Period of Covid19 related Lay Off: 24 December 2020 – 8 February 2022 Hours Worked Per Week: 30 Hours Weekly Gross Wage: €362.00 No Notice Period. This payment is subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period. |
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Dated: 05th January 2023
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Redundancy – RP9 Form – Covid 19 Lay Off |