Complainant

Respondent

Parties

Adam  Truszkowski

B & G Barista Limited D18 Restaurant (Formerly Trading as Barista Café).

Complainant

Respondent

Anonymised Parties

Representatives

Harry Carpendale , HG Carpendale Solicitors

 Company owner.

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-00047746-001

17/12/2021

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

CA-00047746-002

17/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047746-003

17/12/2021

The Complainant commenced employment with the Respondent business on 4th August 2008 and remained in employment until 2nd November 2021. Initially employed as a barista he was the café manager at the end of his employment.

The Complainant worked 35 hours per week for which he was paid 500 euro.

This complaint was received by the Workplace Relations Commission on 17th December 2021.

The Complainant entered into a contract of employment with Barista Café Sandyford on the 4 August 2008 and his contract of employment was signed on 18 September 2008.

The Complainant was employed as a Barista and subsequently, after in or about 3 to 4 years, become the manager of the Café.

The business was subject to a transfer of undertaking on in or about 5 May 2019. The Complainant was on holidays at the time and when he returned from same, he was informed that the business had been taken over by B & G Barista Limited (The Respondent). No new contract of employment was signed with the Complainant at that time and the Complainant continued on the same terms and conditions of employment following the transfer of undertaking.

The Complainant was at all times a hardworking and diligent employee, he never received any complaints in respect of his work, he enjoyed a good working relationship with his colleagues and the customers of the café and was never subject to any kind of disciplinary proceedings.

The Complainant’s hours were always 7am -2pm. He had previously worked weekends but this practice stopped when the Complainant had children and the owner agreed during in or about 2014 that the Complainant’s role would only be 7am -2pm, Monday – Friday.

The Complainant’s start time and finishing time were an integral part of the Complainant’s contract of employment. The Complainant confirmed to his Employer that he had children and that considering the level of renumeration both he and his wife received that they could not afford to have their children cared for by a child minder or by a crèche. His employer was anxious that the Complainant remained in employment with the café. It was therefore agreed that a new role would be created whereby he did not need to work on weekends. The new role created was that of a manager working from 7am to 2pm Monday to Friday and the Complainant accepted the role and therefore remained in employment with his employer (now the respondent to these proceedings).

The government implemented extreme Covid-19 restrictions on in or about the 16 March 2020 and the café was closed. The Complainant was informed that he would be returning to work when the restrictions were lifted. However, and importantly the Complainant was provided with no formal confirmation that he was being subject to a lay-off (i.e., he was not provided with an RP9 form). The Complainant was not subsequently rostered for work when the café reopened. The Complainant confirms that the café was re-opened and was selling take away coffees shortly after the initial extreme Covid-19 restrictions had been lifted.

During the time the Complainant was on lay off, the Respondent employed new Barista’s in the café and did not engage with the Complainant in a meaningful manner in respect of his employment and when he would be returning to work. The Respondent did attempt to offer the Complainant positions which were different to the role he had carried out prior to him being placed on lay-off.

The Complainant’s position is that the Respondent only engaged with him when it felt that it had to and when it did, it did so in a disingenuous manner and at times in an untruthful manner.

The Complainant’s position was that the Respondent attempted to abuse the Government’s moratorium on redundancy and that he remained on lay off until such time as the role he enjoyed prior to being placed on lay-off became available to him.

The Complainant eventually served an RP9 form on the Respondent on 20 October 2021 via registered post. The Respondent received this letter, but despite having received same confirmed in writing on 26 October 2021, that it had not received the letter. The Complainant never received a reply from the Respondent to his correspondence of the 20 October 2021 enclosing the RP9 form and as such understood that his role had therefore been made redundant.

There were a number of WhatsApp messages exchanged between the Respondent and the Complainant, copies of which are attached hereto along with the Complainant’s notes in respect of same. These WhatsApp messages span a number of years during which the Complainant was on lay-off.

A series of correspondence were exchanged between the Complainant and the Respondent which succinctly outline the situation and for the ease of the reader are quoted below:

The Complainants’ letter to the Respondent dated 5 May 2021, stated the following:

“Dear Geraldine,

As you will be aware, I have been working at the Barista’s Café in Sandyford since 10 August 2008. Since that time, I have always been a hardworking and diligent member of staff.

I have given up a huge amount of my personal time and effort in relation to my employment and I have always enjoyed working at the café.

There was a transfer of undertaking wherein your company took over the café during in or about May 2019 and I came to work for you.

I understand that at present it is a very difficult time for everyone with the COVID- 19 pandemic and certainly it has been a difficult time for me and my family. The difficulties which I have been experiencing are compounded by the fact that I find myself in a position where I have been provided with no hours of work despite having attempted to contact you in respect of same.

It is of particular disappointment to me that when I passed the café on numerous occasions since or about September 2020 that there are people that I previously worked with employed within the café and in fact new people working within same. I understand that all the people working in the café are younger than I am, and I am wondering whether or not I have been refused hours of work because of my age. I also learnt that you are advertising for a position as a Barista, which for the avoidance of doubt includes my position, I attached herewith a copy of the advertisement which you posted on Facebook in this regard I would be obliged if you could please revert to me and confirmed why you are advertising for a Barista position(s) and have not engaged with me with regard my return to work.

In the circumstances referred to above, I believe that as the most senior member of staff I should have been contacted and asked whether or not I wanted to return to work during the pandemic and be provided with the full hours that I previously worked as opposed to new members of staff being employed within the café that were not employed during my time there.

With regard to the foregoing, I would be obliged if you could please confirm by return that I can immediately return to work on my full and contracted hours (for the avoidance of doubt, you will be aware that my working week was Monday to Friday, 7:00am to 2:00pm) and if not, I would be obliged if you could provide me with a detailed reason as to why you are not providing me with my said contracted hours and also, provide me with copy of my contract of employment along with the company disciplinary and grievance procedures.

I believe that the disciplinary and grievance procedures should be in line with those initially provided to me with my contract of employment with Barista’s Café Sandyford. I would also be obliged if you could please provide me with a copy of same as I intend raising a grievance in respect of the way in which I have been treated and also the manner in which you have refused to allow me to return to work. I believe that I should be compensated for the hours lost to me to date.

I contacted you last on 13th April last and there has been a recalcitrance on your behalf to respond to me. in this regard I would be obliged if you could revert to me regarding the foregoing as a matter of urgency but in any event no later than 7 days from the date hereof, confirming my return date to work and outlining the reasons as to why I have been treated in a manner in which I have. I addition, I would be obliged if your response could include replies to the following:

1.     Confirmation as to why you have refused to revert to my correspondence to you.

2.     Confirmation as to why I have not been offered work, while people that have worked in the business for less time than me or have never worked in the business have been given work.

3.     Confirmation as to why You have advertised a position of Barista online and refused to allow me to return to work.

If I do not hear from you regarding the foregoing or with as satisfactory response in respect of same. I will have no alternative but to consider my position with the Barista’s Café and take whatever action I deem appropriate to protect my position.”

The Complainant received the following response from the Respondent dated 12 May2021:

Dear Adam,

I refer to your email below and am saddened you felt the need to write such email rather than telephoning me, however I do understand there may be levels of stress involved.

It is with regret I am still enduring difficulties within the business due to the pandemic.

Unfortunately, I am not currently in a position to offer you your role as manager as yet. You will recall I telephoned you before we reopened on 1st May 2020 to offer your position to you, however, you declined due to child minding issues as your wife continued to work.

As we are still enduring economic hardship your position of manager is not required at this time. We will of course review this on a regular basis and will contact you when your position is available.

I have hired baristas at minimum wage, and you are of course welcome to come

back as a barista/floor staff. I’d love to have you back as a barista.

In response to your numbered queries, I respond as follows: -

1.      I have telephoned you and always responded to your texts and emails. I omitted to respond to your last email as I had a family member very ill in hospital. My sincere apologies for not responding, it was not intentional and simply an oversight.

2.      As mentioned above, you were offered work when we reopened but you refused. It is essential for me to have key staff to keep the business going.

3.      Again, as mentioned above, I advertised for the position of baristas not management.

I am not in a position, nor am I obliged, to pay you for hours not worked due to this pandemic.

I understand your frustration in not working but I can assure you I am doing my utmost to keep the business afloat to secure future employment for all members of staff whilst running at losses due to the pandemic and government guidelines. I do hope you understand the position I am faced with.

Please let me know if you want to join us as a barista/waiter and I will schedule you into the rooster in the coming weeks. Otherwise, I will be in touch when the position of manager is available in the future.

Please feel free to telephone should you wish to discuss anything further. Wishing you all the very best.

Kind regards, Ger

The Complainant responded to the Respondent on 25 June 2021 as follows:

“Dear Geraldine and Brian,

I refer to the above matter and previous correspondence in relation to same resting with yours of 12 May 2021.

As you will be aware, for the last 7 years of my employment, my working hours have been from 7am to 2pm, Monday to Friday as per my contract of employment. I understand from your text message which I received on Tuesday, 22 June 2021, that you are now insisting that I return to work with new working hours from 8am to 3pm, and that I work two weekends per month, in addition to covering evening shifts. This is a major change in my terms and conditions of employment and I do not believe that you can unilaterally and arbitrarily change my terms and conditions of employment without first agreeing it with me.

As you will be aware, I have young children and the hours you are offering will make it impossible for me given my current family arrangements.

In your correspondence to me of 12 May 2021, you confirmed that “[You] have hired baristas at minimum wage and [I am] of course welcome to come back as a barista/floor staff.” It was of huge upset to me that you did not contact me or engage with me to come back to employment on an interim basis until matters improve.

I believe that your treatment of me, as outlined in previous correspondence, is unfair.

In the circumstances referred to above, where there has been a structural change in the organisation and where my contracted hours are no longer available to me, I believe a redundancy situation exists.

I believe on the one hand that you no longer have work for me as per my contract with the company and on the other hand, you are attempting to avoid your legal obligation to me in respect of redundancy.

In circumstances where I confirm that I am unable to work the hours offered, I would be obliged if you would confirm whether my ordinary working hours (7am to 2pm, Monday to Friday) remain available.

In conclusion, I want to engage with all the issues with you in a helpful, supportive and efficacious manner, however, to understand the situation regarding the proposed changes to my contract of employment and to fully consider same, I would be obliged if you would please revert to me in writing or by email outlining the full proposed changes to my contract of employment which will obviously include:

1.     whether or not my position as manager is still available to me,

2.     whether there will be any changes to my level of remuneration,

3.     whether there will be changes to my work schedule and/or working hours,

4.     confirmation as to whether or not such changes will have any bearing on my other entitlements arising from my employment such as holiday pay and the number of holidays I am entitled to per annum.

In addition, I would be very much obliged if you would please provide me with my contract of employment, together with the company’s disciplinary and grievance procedures.

Yours sincerely,

Upon receipt of this correspondence the Complainant received a telephone call from one of the owners of the Respondent company wherein he said to the Complainant words to the effect that: if he did not return to work on the new terms being offered he would arrange for his PUP payment to be stopped and he didn’t care about his family circumstances.

The Complainant subsequently went on sick leave and was out on certified sick leave until the end of September 2021. He received no contact from the Respondent throughout that time and he wrote to the Respondent on 20 October 2022, stating the following:

Ms. Geraldine Hayley B&G Barista Limited t/a Barista’s Café Unit E2

Musgrove Office Park Rathfarnham

Dublin 12

Re:                           Barista’s Cafe Sandyford

Dear Geraldine,

As you are aware I have been out of work on certified sick leave. I have provided you with a certificate from my doctor in this regard and despite this you have not contacted me to inquire as to my wellbeing or when I might be able to return to work.

You continued to run the café and had staff working in the café since March 2020. Despite the café being reopened I was never contacted and you simply employed new staff at a lower wage and allowed me to continue to receive the pandemic unemployment payment. The position was simply unfair to me and an abuse of the government support system. If you had contacted me, I might have accepted a temporary change to my terms and conditions of employment but such an offer was not made.

In your letter to me dated 12th May 2021, you misrepresented a conversation which we had on in or about the 1st May 2020, wherein you stated that I declined an offer to return to work. To be clear you did not offer me a return to work at that time. What you in fact stated during the course of that conversation was that you were considering reopening the business and you asked which staff did I think that had been employed prior to the March 2020 shutdown would be in a position to return to work. I said I wanted to return to work myself but that I would have to arrange for childminders for my children.

You refused to allow me to return to work and it was only following a formal correspondence from me on 5th May 2021 that you provided me with an update as to the position regarding my employment. I asked you repeatedly throughout the Covid-19 emergency period whether I was rostered to work and you repeatedly told me there was no work for me. This position is set out in numerous text messages between us.

I wrote to you again on the 25th June 2021 responding to your correspondence of the 12th May last and I am disappointed that you have not responded to this correspondence.

On 10th July 2020 I contacted you via text message stating “Can I call you now?” You phoned me back and we agreed that I would return to work on the 27th July 2020. I arranged for a child minder for my youngest child and paid for my older son to go to summer camp at considerable expense so that I could return to work. However, I was then contacted by you on the 23rd July 2020 wherein you confirmed that there was no work available for me.

For almost a year and a half I have tried to return to work. I love my job; I got on well with colleagues and customers and I cared about the business. There was never a question about my commitment to my job. Instead of engaging with me in a helpful and supportive manner, you ignored my correspondence, committed untruths to paper and hired people to work in the café without asking me what my position was. Without providing any supporting information regarding the business or how it was doing, and for the record I suspect business was doing well when the café was open, you employed people on minimum wage as baristas and informed me I was “welcome to come back as a barista/floor staff”.

The stress of having to support my family though Covid, of not being allowed to return to work, of being ignored and lied to both through omission and in direct correspondence has had a hugely negative affect on my health and has necessitated me being certified as sick at present.

I have now been able to reflect on the situation and in circumstances where you have failed to respond to my correspondence to you dated 25th June 2021, and where I have not been offered my previous role of manager in line with my previous terms and conditions of employment, I believe that you have terminated my employment either due to a structural change in the organisation or economic necessity. In this regard I would call upon you to recognise that my position has been made redundant and to pay me my statutory redundancy entitlement.

Without prejudice to the foregoing and in the alternative, I believe that the manner in which you have treated me and your unilateral and arbitrary decision to change my terms and conditions of employment has amounted to a breach of fidelity which has fractured the employer-employee relationship making it no longer tenable. In addition, I am unable to accept the proposed changes to my contract of employment.

In the circumstances referred to above I believe that my employment has been terminated. If you do not accept, within 14 days from the date hereof, that my position has been made redundant, I will make an application to the Workplace Relations Commission seeking that it determine whether or not I am entitled to redundancy or whether I have been unfairly dismissed.

With regard to the foregoing and so there can be no ambiguity, I enclose herewith a completed RP9 form for your attention for the sake of completeness.

In addition, I note that the café has changed its name and I believe there may be a transfer of undertakings and I would be obliged if you could please confirm the position by return.

Yours sincerely,

This above letter of 20 October 2021 was sent via registered post and the Complainant was provided with confirmation that the correspondence was delivered on 21 October 2021 at 9:27am.

On the same day, being the 20 October 2021, the Complainant received the following:

Date: 20 October 2021 at 14:35:23 IST

To: Adam Truszkowski <kemi76@gmail.com>

“Dear Adam,

I hope all is well.

You are required to attend for work from Friday 22nd October at 8am. I look forward to seeing you then.

In the meantime, you might be good enough to send in the remaining medical certificates.

The Complainant emailed the Respondent on 21 October 2021, at 18:47 and stated the following:

“Dear Geraldine

I have sent you letter, I hope you received it, as its confirmed that was delivered this morning, also I would appreciate if you could respond to my previous correspondence and I will consider the matter.

Further to previous correspondence with you, my contract clearly states my positions in the restaurant as well as the hours and as an employer you cannot unilaterally and arbitrarily change mine terms and conditions of my employment.

The positions that you offered is not adequate to the position I had when I was laid off, hence I am refusing to return to work until you engage with me on issue I had raised.

I will have no choice but to refer the matter to the WRC, unless You will confirm my position is not changed .

I can't meet you tomorrow because one of my kids is sick and furthermore, I have been waiting for weeks for you to reply to mine previous correspondence to you.

Regards Adam”

The Respondent replied on 26 October 2021 stating the following:

“Good morning Adam

I haven’t received your registered post as yet. You might contact An Post and check if it was in fact delivered and who signed for it.

As you know, due to the pandemic, we were ordered to close our restaurant in March 2020. When we reopened, you were the first employee I rang to see if you wanted to work. You refused due to family commitments which I fully understood and respected at that time. Our assistant manager offered to work.

Sometime after you requested your job back but unfortunately the position wasn’t available at that time as I couldn’t take on a second manager. Members of my staff left to return home or sought alternative employment so I advertised for baristas which you took issue with. As such, I offered you the position of barista which you didn’t take.

Sometime after this, I telephoned you to confirm that your position of manager was now available and gave you a weeks’ notice to return as you said you needed time to organise your childcare. I do feel that it was very reasonable for me to give you this time. On the day of your return to work you issued me with a medical certificate and continued to do so every fortnight until recently when I again offered your position back.

It is unfortunate our opening hours have changed and we no longer open at 7am due to the offices in the vicinity being closed. I hope this is only temporary and can reopen in the future but at the moment I need to do what is right for my restaurant to keep all staff in employment.

I am offering you your position of manager from 8am - 3pm Monday to Friday.

I am without a manager for the last number of months and it’s imperative I have a manger running my restaurant.

Please feel free to telephone me or reply here.

I do hope we can move forward and have a good working relationship going forward.

Kind regards Ger

The Complainant responded to the Respondent on the 26 October 2022 wherein he sated the following:

“Good Afternoon, Geraldine

I contacted An Post and the letter was delivered on October 21 at 9:47 am.

The letter was picked up and the receipt was confirmed by BEN. He signed receipt, also I would appreciate if you could respond to my previous correspondence, and I will consider the matter.

Kind Regards Adam”

The Complainant received no further correspondence or contact from the Respondent and subsequently lodged a complaint with the WRC.

The Complainant is making the following claims: Redundancy

The Redundancy Payments Acts 1967 to 2014 Section 7(2) of the main Act states that:

“…. 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.”

The Complainant claims redundancy in the circumstances referred to above where, inter alia, the following occurred:

1.      The Respondent placed the Complainant on lay-off on 16 March 2020, however the Respondent provided no formal notification of this to the Complainant.

2.      The Respondent invited the Complainant to return to work on 23 June 2021 in a text which read “…we’ll ease you in 8-3 Monday to Friday but we’ll need you to work every second weekend. As I mentioned hours will change as we’re open late”

3.      The requirement to work evenings, a new starting and finishing time and a requirement to work weekends can only be considered to be a structural change to the role in which the Complainant was employed in.

4.      The Complainant was entitled to return to work on the same terms and condition he enjoyed prior to being put on a period of lay off.

5.      The Complainant, through a number of correspondences, raised concerns regarding the proposed change to the role he was carrying out and these questions were largely or completely ignored by the Respondent.

6.      The Complainant never accepted the changes to his role/ contract of employment.

7.      The Complainant provided the Respondent with numerous correspondences confirming that he did not accept that the Respondent was entitled to unilaterally and arbitrarily change his terms and conditions of employment without agreement with him.

8.      The Complainant served the Respondent with an RP9 form on 21 October 2021 (the letter was sent via registered post on 20 October 2021 and confirmation was provided by An Post that it was received on 21 October 2021). The Respondent wrote to the Complainant on 26 October 2021 stating that it had not received the letter of the 20 October 2021. However, the employer states within the same correspondence “I am offering you your position of manager from 8am - 3pm Monday to Friday.” This is the first time the Complainant was offered his position back as a manager but again his hours of work had been amended and there is no guarantee of work for an uninterrupted period of more than 13 weeks

9.      The Respondent did not reply to the RP9 form and as such the Complainant is entitled to redundancy.

SECTION 7 (2) (b) of the Redundancy payment acts states:

“(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”

In Employment Law in Ireland by Neville Cox, Val Corbett, Desmond Ryan- Printed by Clarus Press paragraph 22-20 Pages 781 it states:

“amongst the examples of the tribunal adopting a “qualitative” approach to the interpretation of the phrase “work of a particular kind” in this section are its findings that day work is of a different kind to night work; the part-time work is different to on-call work; and that off-site work differs from work on the employer’s premises”

With regard to the foregoing, weekend work can only be considered different to weekday work, evening work is different to morning work, and work ending in the late afternoon being between 3pm-6pm is different to work ending in the early afternoon being 12pm- 2pm. The distinction is critical, for example part time workers will often be employed on a half-day basis from 9am- 2pm or 2pm-6pm. Junior school closes at 2pm etc.

In the circumstances referred to above, it is respectfully submitted that the Complainant is entitled to a redundancy payment.

As the Complainant was employed for the period between 4 August 2008 to 2 November 2021, totalling 13 years and two months and his level of renumeration was €500 per week prior to lay off, under the Redundancy Act 1967 (as amended) he is entitled to two weeks per years’ service and one additional week coming to 27.23 weeks’ pay at €500 being €13,615.

Unfair Dismissal

Without prejudice to the foregoing and in the alternative if the Complainant is not entitled to redundancy he is entitled to succeed on a claim for unfair dismissal in the following circumstances:

1.     The Respondent unilaterally and arbitrarily attempted to fundamentally change the Complainant’s terms and conditions of employment, which was a fundamental breach of the employer/ employee relationship and therefore the termination of the employee’s contract of employment amounted to an unfair dismissal.

2.     The treatment of the Complainant by the Respondent was a breach of fidelity and therefore the termination of the contract of employment amounted to an unfair dismissal.

Terms and Conditions of Employment/ Hours of Work/ Pay

The Complainant was not provided with his holiday pay or pay for public holidays. The obligation is on the employer to prove that it complied with its obligations in this regard.

Conclusion

The Complainant reserves the right to submit further and better evidence in respect of all matters pertaining to his claims at the hearing of his case.

The Respondent represented herself at the hearing. No written submission was made by the Respondent. On 10th October 2022 (some 3 days before the hearing of the complaint) the Respondent sent an email to the Workplace Relations Commission, this email read as follows:

“I confirm that I will be representing myself and will not have any other parties in attendance.

I set out below the following points: -

I purchased the café from Adam’s previous employer, (name redacted), in May 2019.

Due to Covid I was left with no option but to close the business in March 2020 and my staff to seek the pup. I had a Whats App group for all employees and kept in touch with all during our closure to ensure everyone was doing well.

At the end of April 2020, I made a decision to open as a takeaway, as per Government guidelines. As Adam was my manager, I rang him to check if he wanted to come back to work. He declined due to childcare issues as his wife continued to work (beside us) and he had no alternative childcare. I completely understood and respected his position. I then telephoned my assistant manager, Viktor and one of the baristas, Daniela who came back to work alongside one chef in the kitchen.

As per govt guidelines, we were able to open to dine in customers with certain restrictions in place. I texted the Whats App group to check if anyone else wanted to come back to work. I had offers but not from Adam at that point, again I fully respected this.

I had rang Adam out of courtesy on a couple of occasions, however he was still unable to return due to childcare issues.

I have various text messages, specifically one in June 2020 confirming that were opening late. Again, he confirmed he would contact me when he sorted childcare. Again, I fully respected this position.

It wasn’t until July / August 2020 wherein he texts me asking for hours. I couldn’t offer him any work as I had enough staff at that particular time.

Adam texted me on approximately 3 occasions asking for hours and II found it extremely difficult to confirm I had no hours for him at those times and that I would keep in touch when I had more positive news. He had also sent me emails which I presume you have copies of. I always kept Adam informed as best I could. Unfortunately, we were back and forth with lockdowns and restrictions, and it was extremely hard to be more definitive.

In June 2021, my assistant manager confirmed he was ending with us and I was delighted to telephone Adam to confirm I needed him back. He appeared reluctant and difficult on the phone and took issue that I couldn’t offer him the hours he worked previously (7.00am to 2.00pm). Adam would have been well aware of our new opening hours as he often dropped his wife to work beside us. I simply could not open at 7.00am to suit Adam as there was no footfall. I hoped it would be short term but obviously I couldn’t guarantee anything as business changed so drastically with lockdown and restrictions. I tried to be as fair as I possibly could given all of the circumstances but there was absolutely no flexibility on Adam’s side and Covid was a time that everyone needed to pull together and allow for some flexibility on both sides, employee and employer.

On his first day he was due back in the café, I received a doctor’s certificate by text to confirm he was unfit for work due to exhaustion. I received these weekly until October when I believe he took up employment elsewhere.

During this time of certified sick leave, I was unable to secure another manager as I had no indication as to when he would be back.

To briefly summarise, Adam was offered his job back at the very start. He declined due to personal issues……..”

At the hearing of the complaint the Respondent went through the points she had made in the email shown above.

There were two versions of events presented at the hearing of this complaint. Whilst there are some similarities there are far too many differences.

On 20th October 2021 the Complainant sent a lengthy letter by Registered Post to the Respondent, enclosed with this latter was an RP9 form notifying the Respondent of his intention to claim a Redundancy Lump Sum Payment in a Lay Off / Short Time situation. (Ref RP9 – PART B). If the employer challenges this statement from the employee they must complete Part C of the RP9 form. The form is very specific and states the following:

“Notification in respect of this part must be in writing and must be given to the employee within seven days of service of the employee’s notice”.

I accept that the RP9 form was delivered to the Respondent contrary to what the Respondent claims in one of her emails to the Complainant. The Respondent failed to reply to this notice i.e., the Respondent did not complete Part C and send it back to the Complainant within 7 days.

In relation to the complaint submitted under the Redundancy Payments Act (CA – 00047746 -001) I decide that the complaint as presented is well founded and I now order the Respondent to pay a statutory redundancy payment based on the following:

As the Complainant was employed for the period between 4 August 2008 to 2 November 2021, totalling 13 years and two months and his level of renumeration was €500 per week prior to lay off, under the Redundancy Act 1967 (as amended) he is entitled to two weeks per years’ service and one additional week coming to 27.23 weeks’ pay at €500 being €13,615.

This redundancy payment should be made to the Complainant within 42 days from the date of this decision.

CA – 00047746 – 002 – complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

This complaint is not well founded and therefore fails.

CA – 00047746 – 003 – complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

This complaint as presented is well founded.

During periods of certified sick leave employees continue to accrue holiday entitlement. Likewise the employee should be paid for any Public Holiday falling on a day that he is absent and such absence is covered by medical certification. I now order the Respondent to calculate monies outstanding and pay these to the Complainant within 42 days of the date of this decision.

Please see above.