Complainant

Respondent

Parties

Isaiah Chinedu  Anene

Lemon Cafe Bar Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 No appearance

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-00049761-001

13/04/2022

The complainant was employed by the respondent as a chef.  His employment was first registered with Revenue on 01 January 2016.  The complainant was laid off work in March 2020 due to the Covid pandemic restrictions.  He returned to work in June 2020 but was again laid off on 18 September 2020. 

The complainant obtained new employment on 07 June 2021.  He submitted a complaint to the Workplace Relations Commission on 13 April 2022.  The complainant claimed a statutory redundancy payment from the respondent following a period of lay-off.  He did not receive a reply from the respondent.    He claims the respondent failed to pay him the statutory redundancy payment he is entitled to be paid.

The complainant normally worked 40 hours per week and was paid €15 per hour gross.

The complainant commenced employment with the respondent company as a catering assistant/chef.  His commencement date, as shown on Revenue, is 01 January 2016.  He normally worked 40 hours per week at a rate of €15 per hour gross.

In March 2020 the premises had to close due to the Covid pandemic restrictions.  The complainant was laid off and was in receipt of the pandemic unemployment payment from 16 March to 28 June 2020.  The premises reopened on 29 June 2020 and the complainant returned to work.  His wages were in part paid for by the Government wage subsidy.  The complainant was again laid off on 18 September 2020.  He applied for and received the pandemic unemployment payment for the second period of lay-off.

On 09 December 2020 the complainant and other staff received an e-mail from the Manager, Ms MC, stating that the employer had been locked out of the business premises on 01 December 2020 and that there was no immediate prospect of returning to trading.  Employees were requested to inform the employer if they had taken up alternative employment.

The complainant sought alternative employment and successfully obtained a new job in June 2021. 

The provision in the Redundancy Payments Act allowing employees on temporary lay-off to apply to their employer for a redundancy payment had been suspended during the Covid-19 emergency period 13 March 2020 to 30 September 2021.  Consequently, the complainant could not apply to the respondent for a redundancy payment immediately upon commencing alternative employment.

On 22 September 2021 the complainant received another message from the respondent’s Manager, Ms MC, stating that the respondent was taking legal action about access to the premises.  The legal process was taking a long time and there was no sign the respondent would get back into the premises in the short term.  Employees were advised that if they wanted to take up alternative employment then they should do so.  There was no reference to redundancy or redundancy payment in that message.

The complainant submitted a complaint to the Workplace Relations Commission.  The complaint was received on 13 April 2022.  The complainant sent an RP9 claim form, by registered post, to the respondent at its registered address but this was returned to sender.  He also sent a claim form to the home address of one of the directors of the company, by registered post, but he did not receive a reply.

The complainant claims the respondent has failed to pay him the statutory redundancy payment that he is entitled to be paid.

There was no appearance by or on behalf of the respondent.  I am satisfied that respondent was notified of the date, time, and location of the hearing as notice was sent to the registered address of the respondent by letter dated 04 April 2023.  The company is not in liquidation.

The complainant was employed by the respondent company from 01 January 2016.  He was laid off on 16 March 2020 when the premises had to close due to restrictions imposed because of the Covid 19 pandemic.  He returned to work on 29 June 2020 when the premises re-opened.

The complainant was again laid off on 18 September 2020.  The complainant remained on lay-off until he commenced new employment on 07 June 2021.  The complainant served notice on the respondent of his intention to claim a redundancy payment due to lay-off.  The complainant did not receive a reply and was not paid a redundancy payment.

The complainant gave evidence on oath and provided me with copies of the RP9 form, proof of posting, copies of his pay slips for 2020 and a statement from Revenue of his PAYE income from the respondent company between 2016 and 2020. 

The complainant was a credible witness and was clearly very upset by the way he was treated by the respondent and the failure to pay him a redundancy payment. 

Legislation

The Redundancy Payments Act provides as follows:

General right to redundancy payment.

7.— (1) 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.

The right to claim a redundancy payment following a period of lay-off is provided for in section 12 (1) of the Act as follows:

Right to redundancy payment by reason of lay-off or short-time.

12.— (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the layoff or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

The following section 12A was Inserted (13.03.2020) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 29, commenced as per s. 1(2)(c)

Operation of section 12 - emergency period

12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

Section 12A commenced on 13 March 2020 and expired on 30 September 2021.  The complainant was thus not permitted to claim a redundancy payment from the respondent until after 30 September 2021. 

Based on the uncontested evidence presented I find the complainant is entitled to a redundancy payment pursuant to the Redundancy Payment Acts 1967- 2022, in accordance with the following criteria:

Date employment commenced: 01 January 2016

Date employment terminated:   06 June 2021

Periods of Covid related lay-off:  16 March to 28 June 2020

                                                           18 September 2020 to 06 June 2021      

Wages per week:                          €600 gross

CA-00049761-001

Complainant submitted under section 39 of the Redundancy Payment Act, 1967.

I allow the complainant’s appeal based on the uncontested evidence presented.  I find the complainant is entitled to a redundancy payment based on the following criteria:

Date employment commenced:  01 January 2016

Date employment terminated:   06 June 2021

Periods of Covid related lay-off:  16 March to 28 June 2020

                                                           18 September 2020 to 06 June 2021      

Wages per week:                           €600 gross

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

Redundancy

Lay-off