ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044156

Parties:

	Complainant	Respondent
Parties	Jian Huang	Lemon Cafe Bar 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-00049762-001	13/04/2022

Date of Adjudication Hearing: 04/05/2023

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 and 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 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, Dublin. In line with 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) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the Complaints being made by the Complainant in his preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought (the Complainant herein).

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an or make an affirmation as may be appropriate. I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The interpreter was invited to swear an oath/make an affirmation to well and truly interpret.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. This was done with the assistance of an Interpreter. I was provided with a comprehensive submission prepared by the Citizens Information, and which was submitted in or around December of 2022. I was provided with supplemental documentary evidence in support of the Complainant’s case on the day of the hearing. This included his most recent payslips from which I was able to glean salient information.

The Complainant alleges that he was made Redundant in December of 2020 when the Restaurant in which he had been working was unexpectedly closed down. His Employer did not engage in the Redundancy process. The Complaint herein was brought to the attention of the WRC on the 13th of April 2022 by way of a workplace relations complaint form. The Complainant has demonstrated reasonable cause for failing to bring his claim in the first 104 weeks after the termination of his employment.

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.

Summary of Respondent’s Case:

The Respondent (through a witness or representation) did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 23rd of March 2023 - and sent to the address provided as the company address and for the attention of the key executive – a Ms. Cooper.

Findings and Conclusions:

The Complainant was contacted by email from his Employer on or about the 9th day of December 2020. At that time the Complainant was advised that the Respondent was locked out of the premises and that there was no immediate prospect of returning. The Complainant was hopeful that the premises would re-open but in due course his Employer advised that he should make a formal application for Redundancy through the Workplace Relations Commission.

I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence:

The employment started: 14th of July 2013

The employment ended: 9th of December 2020

Gross weekly wage : €784.00

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.

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

CA-00049762-001 –

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:

The employment started: 14th of July 2013

The employment ended: 9th of December 2020

Gross weekly wage: €784.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. A ceiling of €600.00 per week applies.

Dated: 07/06/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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