CORRECTION ORDER
ISSUED PURSUANT TO SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision issued on the 6th of July 2023 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043119
Parties:
| Complainant | Respondent |
Parties | John O'Sullivan | Tysoucha Limited V trading as Tyresource in Liquidation |
Representatives | Billy Barrett Financial Services Union | Megan Mundy,on behalf of Andrew Hendrick (the Liquidator),Friel Stafford Insolvency Services |
Complaints:
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-00053508-001 | 02/11/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00053508-002 | 02/11/2022 |
Date of Adjudication Hearing: 24/05/2023
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 (or Liquidator) 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.
The Employee must have made a claim for a redundancy payment 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 hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. This was a hybrid hearing. To facilitate the Respondent, the evidence provided by the only witness was heard by way of remote attendance which is provided for 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 contact was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that neither the Complainant nor the Respondent was prejudiced by having a part of 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.
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Summary of Complainant’s Case:
Unusually the complainant did not attend the hearing. The Complainant’s nominated representative did attend the hearing on the Complainant’s behalf. In the circumstances, the case made by the Complainant could only be made within the parameters of what is set out in the Workplace relations Complaint Form. The Complainant’s nominated representative was happy to proceed on this basis. The Complainant alleges that he was made Redundant. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Summary of Respondent’s Case:
The Liquidator for the Respondent company was represented at the hearing. One witness attended on behalf of the company a Mr. Kevin Talbot who had been a company Director with the company and was in a position to speak to the circumstances surrounding the Complainant’s termination of employment. The Respondent rejects that there has been a Redundancy situation and does not accept that there is an entitlement to a payment of Statutory Redundancy. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
The Complainant’s position is as set out in the Workplace Relations Complaint Form which was submitted on the 2nd of November 2022. The Complainant commenced employment on the 24th of January 2020. The Complainant was and always has been employed as a mobile tyre fitter primarily engaged in call out services. The Complainant has always operated a company van which allowed him move between the four different branches in Naas, Newbridge, Harmonstown and Ranelagh. I understand that when not assisting in breakdowns out on the road, he might be moving stock around the four outlets. It is common case that the Complainant was primarily attached to the Naas branch which was closest to his home in Lucan. The Respondent witness was not aware of whether or not the Complainant had a private car, though agreed that the Complainant drove to and from work in the company van and that the company van would go home with the Complainant at weekends. There was only one mobile breakdown van across the business, and the complainant was driving it. Everyone understood this to be the case. There was considerable turbulence across the business during Covid and the knock on from this came to be felt through 2022. I accept that Mr T (on behalf of the Respondent company) was dealing with many issues trying to keep the business afloat. Mr. T rang the Complainant on the 26th of September 2022 to advise that a decision had been made to stop providing a mobile breakdown service. Mr. T says that he told the Complainant that the Van was to be taken off the road with immediate effect. In his evidence he told me that the reason for this was that running the van was unsustainable. I understand that the Complainant was advised that the Newbridge plant was closing down and that there was general re-structuring going on. Mr. T says that the Complainant was told that there was an onsite job available for him in Naas, starting immediately. The Complainant had the required skill set to take up a position in Naas. The Complainant indicated to his Employer that he was without a private car (and now potentially a work car) and was not in a position to travel to and from Naas without considerable cost and expense to himself. I would accept that the 25-minute drive becomes an hour and a half of a commute where there is no direct public transport route. In the circumstances, the Complainant said he would not be in a position to take up the alternative employment in Naas. I understand that the Complainant was able to secure alternative employment almost immediately. The employer and Liquidator seemed to be of the view that since the Complainant was able to pick up immediate employment, he was not made Redundant. I find I do not hold a similar view. It is clear that the Respondent company was trying to re-structure for survival. A decision was made, unbeknownst to the Complainant, to cease to provide the breakdown mobile assist service. Clearly his job was gone. Section 7(2) of the Redundancy Payments Act, 1967, states: For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 in the place where the employee was so employed, or (b) The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish… I am satisfied that in this instance the Complainant’s job was ceased and he therefore is covered by Section 7(2)(b). I appreciate that the Employer has tried to make the case that the Complainant was not dismissed as his Contract of employment could (they say) have continued after the 26th of September 2022 albeit it would operate in a somewhat different way (a fulltime role in the one place and without company provided transport). However, I accept that these terms differ significantly to those enjoyed by the Complainant up to the 26th of September and he was entitled to reject the alternative offer made. The Complainant was made Redundant on the 26th of September. As it happens the Complainant moved on immediately and was not available to work through a Notice period so that that claim is not well-founded. Whilst the Complainant may well have been able to work as a fitter in Naas thereafter, his employer also sought to take his transport with immediate effect. The offer of alternative employment was therefore rendered unsuitable for the Complainant. Based on the evidence before me, I am satisfied that the complainant was in employment with the Respondent Company (now in liquidation) from the 24th of January 2000 to the 26th of September 2022. The Complainant indicated what his Gross weekly wage was.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the separate complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00053508-001 I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria: Date of Commencement: 24th of January 2020 Date of Termination: 26th of September 2022 Gross Weekly Pay: €590.00 This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00053508-002 - This Complaint was not well-founded and fails.
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Dated: 06-07-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043119
Parties:
| Complainant | Respondent |
Parties | John O'Sullivan | Tysoucha Limited trading as Tyresource in Liquidation |
Representatives | Billy Barrett Financial Services Union | Megan Mundy, on behalf of Andrew Hendrick (the Liquidator), Friel Stafford Insolvency Services |
Complaints:
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-00053508-001 | 02/11/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00053508-002 | 02/11/2022 |
Date of Adjudication Hearing: 24/05/2023
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 (or Liquidator) 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.
The Employee must have made a claim for a redundancy payment 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 hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. This was a hybrid hearing. To facilitate the Respondent, the evidence provided by the only witness was heard by way of remote attendance which is provided for 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 contact was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that neither the Complainant nor the Respondent was prejudiced by having a part of 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.
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Summary of Complainant’s Case:
Unusually the complainant did not attend the hearing. The Complainant’s nominated representative did attend the hearing on the Complainant’s behalf. In the circumstances, the case made by the Complainant could only be made within the parameters of what is set out in the Workplace relations Complaint Form. The Complainant’s nominated representative was happy to proceed on this basis. The Complainant alleges that he was made Redundant. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Summary of Respondent’s Case:
The Liquidator for the Respondent company was represented at the hearing. One witness attended on behalf of the company a Mr. Kevin Talbot who had been a company Director with the company and was in a position to speak to the circumstances surrounding the Complainant’s termination of employment. The Respondent rejects that there has been a Redundancy situation and does not accept that there is an entitlement to a payment of Statutory Redundancy. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
The Complainant’s position is as set out in the Workplace Relations Complaint Form which was submitted on the 2nd of November 2022. The Complainant commenced employment over twenty two years ago on the 24th of January 2000. The Complainant was and always has been employed as a mobile tyre fitter primarily engaged in call out services. The Complainant has always operated a company van which allowed him move between the four different branches in Naas, Newbridge, Harmonstown and Ranelagh. I understand that when not assisting in breakdowns out on the road, he might be moving stock around the four outlets. It is common case that the Complainant was primarily attached to the Naas branch which was closest to his home in Lucan. The Respondent witness was not aware of whether or not the Complainant had a private car, though agreed that the Complainant drove to and from work in the company van and that the company van would go home with the Complainant at weekends. There was only one mobile breakdown van across the business, and the complainant was driving it. Everyone understood this to be the case. There was considerable turbulence across the business during Covid and the knock on from this came to be felt through 2022. I accept that Mr T (on behalf of the Respondent company) was dealing with many issues trying to keep the business afloat. Mr. T rang the Complainant on the 26th of September 2022 to advise that a decision had been made to stop providing a mobile breakdown service. Mr. T says that he told the Complainant that the Van was to be taken off the road with immediate effect. In his evidence he told me that the reason for this was that running the van was unsustainable. I understand that the Complainant was advised that the Newbridge plant was closing down and that there was general re-structuring going on. Mr. T says that the Complainant was told that there was an onsite job available for him in Naas, starting immediately. The Complainant had the required skill set to take up a position in Naas. The Complainant indicated to his Employer that he was without a private car (and now potentially a work car) and was not in a position to travel to and from Naas without considerable cost and expense to himself. I would accept that the 25-minute drive becomes an hour and a half of a commute where there is no direct public transport route. In the circumstances, the Complainant said he would not be in a position to take up the alternative employment in Naas. I understand that the Complainant was able to secure alternative employment almost immediately. The employer and Liquidator seemed to be of the view that since the Complainant was able to pick up immediate employment, he was not made Redundant. I find I do not hold a similar view. It is clear that the Respondent company was trying to re-structure for survival. A decision was made, unbeknownst to the Complainant, to cease to provide the breakdown mobile assist service. Clearly his job was gone. Section 7(2) of the Redundancy Payments Act, 1967, states: For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 in the place where the employee was so employed, or (b) The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish… I am satisfied that in this instance the Complainant’s job was ceased and he therefore is covered by Section 7(2)(b). I appreciate that the Employer has tried to make the case that the Complainant was not dismissed as his Contract of employment could (they say) have continued after the 26th of September 2022 albeit it would operate in a somewhat different way (a fulltime role in the one place and without company provided transport). However, I accept that these terms differ significantly to those enjoyed by the Complainant up to the 26th of September and he was entitled to reject the alternaitve offer made. The Complainant was made Redundant on the 26th of September. As it happens the Complainant moved on immediately and was not available to work through a Notice period so that that claim is not well-founded. Whilst the Complainant may well have been able to work as a fitter in Naas thereafter, his employer also sought to take his transport with immediate effect. The offer of alternative employment was therefore rendered unsuitable for the Complainant. Based on the evidence before me, I am satisfied that the complainant was in employment with the Respondent Company (now in liquidation) from the 24th of January 2000 to the 26th of September 2022. The Complainant indicated what his Gross weekly wage was.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the separate complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00053508-001 I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria: Date of Commencement: 24th of January 2000 Date of Termination: 26th of September 2022 Gross Weekly Pay: €590.00 This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00053508-002 - This Complaint was not well-founded and fails.
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Dated: 06-07-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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