Complainant

Respondent

Parties

Ioan  Pop

Vicarmount Limited t/a Mexico To Rome

Representatives

Mihaiela Popa of Popa & Co. Law Firm

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-00051518-001

04/07/2022

Following the lockdown due to the Covid-19 pandemic, the complainant says he should have been made redundant when the restaurant did not re-open. He got no replies when he tried to contact the respondent.

The respondent did not attend the hearing.

The complainant says he worked for the respondent from 16 June 2013 as Head of Kitchen. At the beginning of the Covid-19 pandemic he received a letter advising him the restaurant was closing until 29 March 2020. He received no further communication from the respondent.

He submits he was unable to apply for redundancy during the pandemic until 30 September 2021.

On 30 November 2021 he sent a Redundancy Payment Request From, RP77, to the respondent by post and email but got no reply and the letter was returned as there was no answer.

The respondent did not attend the hearing. The notice of the hearing was returned to the WRC undelivered.

This complaint is made under the Redundancy Payment Act and the complainant alleges the respondent made him redundant. He received a letter from the respondent at the beginning of March 2020 stating the restaurant would be closed temporarily until 29 March 2020 and that he should apply for the Pandemic Unemployment Payment. He heard nothing more from the respondent.

As part of Covid emergency provisions the right to claim redundancy was suspended until 30 September 2021. The complainant sent an RP77 form to the respondent on 30 November 2021 but got no response.

It is clear from the returned correspondence that the respondent had ceased trading as a restaurant.

I have to decide if the complainant is entitled to receive a redundancy payment in accordance with section 7 of the Redundancy Payments Act, which states:

“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.”

Section 11 sets out under Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

 (2) Where —

(a) for any week an employee’ s remuneration is less than one-half of his normal weekly remuneration, or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short time for that week.”

Section 12 Redundancy Payments Act, 1967 states as follows:

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 lay-off 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.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.”

It is clear that the complainant was laid off in March 2020 when the restaurant closed and did not re-open.

I find that the complaint under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Start date:                                                        16 June 2013

Termination date (when RP9 served):         30 November 2021

Weekly gross pay:                                            €600.00

Period of lay-off:                                              09 March 2020 to 30 November 2021

These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy during lockdown