Complainant

Respondent

Parties

Barry  Kane

Fegans Cash and Carry Limited

Representatives

Seamus Taaffe, Francis B. Taafe & Co Solicitors, instructing Mr. Fergal T. Fitzgerald Doyle, B.L.

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053952-001

01/12/2022

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

CA-00053952-002

01/12/2022

On 1 November 1998, the Complainant commenced employment as a storeman with the Respondent. The Respondent ran a cash and carry business. The Complainant was dismissed on 7 July 2022 on the grounds of redundancy. On 1 December 2022, the Complainant submitted a complaint to the Director General of the WRC, seeking a statutory redundancy payment under section 39 of the Redundancy Payments Act 1967, as revised.

At the outset of the Hearing, the Complainant’s representative explained that the Respondent has not been operating for some time as a cash and carry business. He outlined that a coffee shop was operating on the same premises for approximately one and a half years, but this closed a few weeks ago. He further outlined that the Respondent still existed as a legal entity. According to the Companies Online Registration Environment (“CORE”), the Respondent continues to exist and so, it was appropriate for me to hear these complaints.

The Complainant outlined that since 1 November 1998, he worked as a storeman for the Respondent. He worked 37.5 hours per week until the start of the Covid-19 pandemic. From April 2020, when the Respondent re-opened, the Complainant’s hours were reduced by 50% and he worked 20 hours per week. These remained his hours until his dismissal on 7 July 2022. From April 2020 until July 2022, he received a gross salary of €1,041 per month. The Complainant outlined that unlike him, his two colleagues went back to work full-time.

The Complainant outlined in his evidence that he did not receive the Covid-19 related lay-off payment scheme, as he continued to work. However, due to his reduced hours, he received nine months of social welfare payments from September 2020 until June 2021. This was a reduced payment.

The Complainant outlined that after October 2018, he received no payslips from the Respondent. He further outlined that he was paid by way of bank transfer into his bank account.

The Complainant outlined that he had received no notice concerning the termination of his employment. He outlined that he had received a phone call during the evening of 7 July 2022 from the Director of the Respondent. The Complainant outlined that the Director told him that he was being made redundant. The Complainant further outlined that the Director told him not to worry as he would be “looked after” by way of a redundancy payment and that he would help him find another job in the industry as he had many contacts. The Complainant never heard from the Director again about this. The Complainant called him numerous times and he also emailed him but received no response. The Complainant never received any redundancy payment, nor did he receive any redundancy forms to complete.

The Complainant outlined that his Employment Detail Summary states that his employment ended on 30 April 2022 as that is what the Respondent incorrectly informed Revenue. However, the Complainant outlined that he worked until 7 July 2022. By way of support, the Complainant provided his bank statements which show that the Respondent last paid him on 15 July 2022.

The Complainant outlined that he had worked for the Respondent since 1998 – firstly for the father and then for his son. He worked long hours and never had a break in employment. He had an unblemished record and never received a single reprimand. He had been told that he would be taken care of, but this was not the case. At the very least, the Complainant expected a facilitation of his redundancy payment. He is very disappointed with how he was treated by the Respondent. He has since obtained a new job in a different line of work.

The Respondent did not attend the Hearing as scheduled.

In a letter from the WRC dated 9 May 2023, the Respondent was informed of the date, time and venue of the Hearing. The letter also set out the procedure regarding postponement requests. This letter was sent by registered post. When it was returned, it was resent to the Respondent by standard post.

When the Respondent did not attend the Hearing on 14 June 2023, a grace period was allowed to enable the Respondent to attend or contact the WRC.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and had sufficient opportunity to attend.

The Law:

The Complainant seeks a statutory redundancy payment under section 39 of the Redundancy Payments Acts 1967, as revised (the “RPA”). In order to qualify, an employee must: (1) have at least 2 years’ continuous service; (2) be in employment which is insurable under the Social Welfare Acts - this is a matter for the Department of Social Protection; (3) be over the age of 16; (4) have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and (5) not have received a lump sum payment. Periods of lay-off are excluded from reckonable service.

Section 7 of the RPA sets out five specific circumstances in which an employee may be entitled to a redundancy payment, including:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose 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, 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, …”

Schedule 3 of the RPA sets out what constitutes “normal weekly remuneration”:

“13. For the purposes of this Schedule, in the case of an employee who is paid wholly by an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration does not vary in relation to the amount of work done by him, his normal weekly remuneration shall be taken to be his earnings (including any regular bonus or allowance which does not vary in relation to the amount of work done and any payment in kind) for his normal weekly working hours as at the date on which he was declared redundant, together with, in the case of an employee who is normally expected to work overtime, his average weekly overtime earnings as determined in accordance with paragraph 14.

14. For the purpose of paragraph 13 the average weekly overtime earnings shall be determined by ascertaining the total amount of overtime earnings of the employee concerned in the period of 26 weeks which ended 13 weeks before the date on which the employee was declared redundant and dividing that amount by 26.

15. For the purpose of paragraph 14 any week during which the employee concerned did not work shall be disregarded and the most recent week before the 26-week period mentioned in paragraph 14 shall be taken into account instead of the week during which the employee did not work.”

Findings and Conclusion:

As the Respondent ceased to carry on the business for the purpose for which the employee was employed by him, the Complainant’s job became redundant. As the Complainant has completed more than two years of service; is over the age of 16; was made redundant as a result of a genuine redundancy situation; and did not receive any lump sum payment, I am satisfied that his complaint is well founded.

The Complainant is entitled to a redundancy payment based on the following facts established in evidence:

Date of commencement of employment:  1 November 1998.

Date of end of employment: 7 July 2022.

Gross weekly pay: €240.

Any award made under the RPA is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 – 1966.  The calculation of the lump sum is a matter for the relevant Department.

CA-00053952-001 – Complaint under the Unfair Dismissals Act, 1977, as revised:

This complaint was withdrawn.

CA-00053952-002 - Complaint under the Redundancy Payments Act 1967, as revised:

For the reasons outlined above, the complaint is well founded.

The relevant criteria are:

Date of commencement of employment:  1 November 1998.

Date of end of employment: 7 July 2022.

Gross weekly pay: €240.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts for the relevant period, being a matter for the relevant Department.

Redundancy Payments Act 1967.