ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00041487

Parties:

	Complainant	Respondent
Parties	Nuala O'Brien	Muirdrum Limited

Representatives

Whelehan Solicitors

Not present

Complaint(s):

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-00052579-001	05/09/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00052579-002	05/09/2022

Date of Adjudication Hearing: 08/03/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses.

Background:

The Complainant was employed as an Office Administrator and the office where she was working closed and she received no redundancy pay or notice pay.

Summary of Complainant’s Case:

The Respondent is a private company limited by shares and operated as an estate agent/ auctioneer from premises situate at Castle Street, Tralee. The Complainant was employed as an Office Administrator on or about the 20 September, 1981. During the course of her employment she answered to David O' Donnell, who is a director of the Respondent, and the person responsible for the running of the business.

The Complainant worked full time until in or around 2009, when she was reduced to a three day week by reason of the recession. The Complainant resumed full time hours in 2017, but was then reduced to a three day week in or around 2018.

Prior to the complaints the subject matter of the within proceedings, the Complainant worked, on average, 21 hours per week and was paid a monthly salary of c. €1,094.99.

Due to the onset of the COVID-19 pandemic and the consequential implementation of mandated lockdowns, the Respondent's place of business had to close in or around March, 2020. The Complainant encountered considerable difficulties during the subsequent lockdowns in terms of maintaining contact with the Respondent. There was no clarification forthcoming from the Respondent as to when the business would re-open.

On or about the 6th April, 2022 the Complainant met with the Respondent's servant and agent, David O' Donnell. He confirmed that the Complainant was being made redundant, and the Complainant understood that, as and from that date, her employment with the Respondent had terminated by reason of redundancy. Mr O' Donnell advised the Complainant that the Respondent's accountant would be taking charge of calculating the redundancy payment due to the Complainant. However, she heard nothing further from the Respondent in this regard. To the best of the Complainant's knowledge, the Respondent is no longer operating business as an estate agent/ auctioneer.

By reason of the Respondent's failure to progress matters and discharge the redundancy payment due and owing to the Complainant, she submitted a RP77, dated the 3rd August, 2022 to the Respondent calling for delivery of a Redundancy Form RP50 and lump sum payment. This was served under cover of certified post on the 4th August, 2022.

By letter dated the 4th August, 2022, which accompanied the abovementioned RP77, the Complainant advised the Respondent that if there was no response within 14 days she would have no option but to refer a complaint to the Workplace Relations Commission.

There was no response for or on behalf of the Respondent, and the Complainant has not received either a RP50 or a redundancy lump sum payment. The Complainant thus referred the abovementioned complaints to the Workplace Relations Commission, which were acknowledged on 5th September, 2022.

By reason of the termination of the Complainant's employment by the Respondent on or about the 6th April, 2022, she is entitled to a redundancy payment pursuant to inter alia section 7 of the Redundancy Payments Act, 1967.

The Respondent has failed, refused and/or neglected to issue to the Complainant a Redundancy Form RP50 and has failed to discharge the lump sum payment to which she is entitled pursuant to section 19 of the Redundancy Payment Act, 1967, despite having been called upon to do so by the Complainant's submission of Redundancy Form RP77.

The Respondent failed to give the Complainant notice of termination of her employment in accordance with the Minimum Notice and Terms of Employment Act, 1973 and has failed to pay her in lieu thereof.

CA-00052579001: Complaint for adjudication pursuant to section 39 of the Redundancy Payments Acts, 1967.

In accordance with Schedule 3 of the Redundancy Payments Act, 1967, the Complainant is entitled to a lump sum payment equivalent to the aggregate of two weeks' remuneration for every year of continuous employment, plus one bonus week payment.

The Complainant's period of continuous employment amounts to 38 years and 31 weeks (38.59 years), calculated as follows:

Number of weeks between 28.09.81 (date of commencement) and 06.04.22 (date of termination) = 2114 weeks, minus

Number of weeks between 18.03.20 and 06.04.22 (between which dates the Complainant was on lay off due to the COVID 19 pandemic which said period is not reckonable for the purpose of the 1967 Act) = 107 weeks.

The Complainant's normal weekly remuneration, in accordance with Schedule 3 of the 1967 Act, was c. €254.32 (gross) i.e. €1,102.02 (her gross monthly salary) x 12 to provide an annual salary, and divided by 52 to provide her weekly remuneration.

On the basis of the foregoing, the Complainant's lump sum entitlement amounts to c. €19,882.74.

CA0005257902: Complaint for adjudication pursuant to section 6 of the Payment of Wages Act, 1991.

Pursuant to section 4 of the Minimum Notice and Terms of Employment Act, 1973, the Complainant was entitled inter alia to eight weeks' notice of the termination of her employment. She was neither provided that notice, nor paid in lieu thereof in accordance with section 7 of the 1973 Act. The Complainant is entitled to compensation for the loss sustained by her in this regard i.e. 8 weeks' remuneration.

The Complainant advised that she was continually employed from 28/9/1981 under transfer of undertaking commencing initially with Irish and European Cork Ltd and then transferring to Gerdamer Ltd and then transferred to the Respondent. I am satisfied the Complaint was in continuous employment with the Respondent from “8/9/1981 to6/4/2022.

Summary of Respondent’s Case:

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on 5/9/2022 alleging that her former employer contravened the provisions of the Payment of Wages Act 1977 and the Redundancy Payments Act 1991 in relation to her. The said complaint was referred to me for investigation. A Remote Hearing for that purpose was held on March 8th 2023. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and method at which the Hearing to investigate the complaint would be held and were not present at the Hearing.

Findings and Conclusions:

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the complainant was made redundant and did not receive a redundancy payment.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows:

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.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be 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 for the purposes 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, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Section 39 of the Redundancy Payments Acts 1967 – 2020 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Based on the uncontested evidence of the Complainant I allow the Complainants appeal and I award her statutory redundancy on the following basis Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.” Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement; September 28th 1981

Date of Reckonable Service for Redundancy Payment Ceasing on: April 6th 2022

Gross Weekly Wage: 254.32 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Having considered the Complainant’s verbal submission, I find that she was not paid what was properly payable to her on the termination of her employment regarding notice. The Complainant did not receive her statutory minimum notice and is entitled to eight weeks notice pay amounting to 2034.56 Euros. (CA-00052579-002)

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find in favour of the Complainant and award her 2034.56 Euros.

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. I allow the Complaints Appeal. (CA-00052579-001).

Dated: 22nd March 2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy