Complainant

Respondent

Parties

Bogdan  Grecu

Mario's Restaurant Limited Restaurant Bussiness

Representatives

Thomas Ryan Peninsula

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-00047672-001

15/12/2021

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

CA-00047672-002

15/12/2021

The Complainant was employed as a Waiter by the Respondent from the July 2001 until his last date of employment on the 19th of November 2021.  The Complainant submitted 2 complaints under the Redundancy Payments Act, 1967, claiming that he did not receive his redundancy payment upon termination of his employment and that he had not been advised by the respondent of their inability to pay his entitlement. 

In his complaint form, the Complainant submitted that the restaurant had closed on a temporary basis on the 19th of March 2020 due to COVID restrictions.  He outlined further openings and closures relating to the pandemic until he was eventually laid off again on 18th December 2020.  When he did not receive any indication of a return-to-work date by 19th November 2021 he submitted an RP9 form to the Respondent informing him of his intention to claim redundancy in accordance with the provisions of the Act.  The Complainant also submitted a complaint that he had not been advised by the Respondent of the Respondent’s inability to pay redundancy.

The Respondent accepted that the Complainant was entitled to redundancy payments.  The Respondent also confirmed that he was not in a position to pay the redundancy entitlement. 

CA- 00047672-001

The Complainant advised that he commenced employment with the Respondent in July 2001 and that he had a good working relationship with the Respondent throughout his employment. He advised that he had been treated well by the Respondent throughout his employment.  He confirmed that the restaurant ceased functioning at full capacity due to COVID on the 19th o of March 2020 and began providing a takeaway service only.  He advised that this resulted in a smaller number of staff continuing to work and he confirmed that he was not one of those required to work.

The Complainant confirmed that he kept in regular contact with the Manager and with HR over the next few months and that on 13th July 2020 he was called back to work as the restaurant was re-opened at half capacity, in accordance with government regulations. 

The Complainant confirmed that due to on-going restrictions on the hospitality sector he was laid off again on 15th September 2020.  He advised that those restrictions were partly lifted in November 2020 and that as a result he contacted management and was eventually called back to work in December 2020.

The Complainant advised that 2 weeks prior to Christmas, on 18th December he was again laid off and he confirmed that since then he was never called back to work.

The Complainant outlined that he made contact with HR via email on 1st June 2021, 3rd August 2021 to enquire about a possible return date and he confirmed that on each occasion he received a negative response.

The Complainant noted that hospitality was permitted to reopen in full in October 2021 and that he had hoped he would then be called back to work, and he noted that his former colleagues had returned, and that new staff had been hired by the Respondent.

The Complainant confirmed that in the absence of any clarity on a return to work and in the context that he had been laid off since 18th December 2020, on 19th November 2021 he submitted his RP9 form to the Respondent advising him of his intention to claim redundancy. The Complainant submitted copies of correspondence referred to by him in advance of the hearing.

CA- 00047672-002

The Complainant advised that he was not formally notified by the Respondent that they were unable to pay his redundancy entitlement.

CA- 00047672-001

The Respondent outlined that the pandemic had been a very challenging time for the business and that he had not fully understood the implications of the extended lay off until he had received the RP9 Form from the Complainant.

He confirmed that the Complainant had been a valued member of the team and that he had given excellent and dependable service over the years.  He advised that, but for the pandemic, the working relationship would have continued as heretofore.  He also confirmed that although the hospitality sector had been permitted to reopen fully since October 2021, the restaurant was not yet back to pre-Covid activity levels.

The Respondent confirmed that he accepted that the Complainant was entitled to seek redundancy payments and confirmed the details relating to lay off periods. 

CA- 00047672-002

The Respondent advised that he was not in a position to pay the Complainant’s redundancy entitlements due to the challenges faced by the business arising from the pandemic.  He confirmed that he had not advised the Complainant of that position as he believed the WRC was the appropriate place to advise of the situation. 

CA- 00047672-001

I considered carefully the oral submissions made by both parties at the hearing, together with supporting documentation provided by the Complainant.  I noted that there was no dispute between the parties in relation to the duration of employment, nor in relation to the entitlement of the Complainant to redundancy payment based on that employment.   I noted the Respondents’ financial position as outlined above and I noted that the Respondent did not provide any supporting evidence of the financial position he outlined at hearing. 

I noted that the Respondent was unclear in relation to the impact of the extended lay off in terms of redundancy and unclear in relation to his obligations to the Complainant in that regard.  However, notwithstanding any confusion that may have arisen, it is clear to me that the Complainant has an entitlement to redundancy payment.  I accepted the Respondents’ bona fides in relation to the recurring closures and its impact on the financial position of the business at that time.

I noted that the Complainant had made several attempts to engage with the Respondent in relation to his return to work and that he had a real expectation that he would be returned to work following the reopening of the hospitality sector.  I accept that when this did not happen, he then correctly notified the Respondent of his intention to claim redundancy and that when he did not receive a response, he submitted his complaints to the Workplace Relations Commission.

I noted that Section 24 of the Act provides that “an employee shall not be entitled to a lump sum” unless they have a further complaint within 52 weeks of the date of termination of employment and I noted that the Complainant had submitted his complaint within that timeframe. 

Section 12(2) (a) of the Redundancy Payments Act states that an employee claiming redundancy in a lay off situation must show “he has been laid off or kept on short-time for four or more consecutive weeks of which the last before the service of notice ended on the date of service thereof or ended not more than four weeks before that date, or (b) he has been laid off or kept on short-time for a series of six or more weeks (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date.”

Based on the foregoing it is clear that the Complainant has an entitlement to redundancy based on his service in employment with the Respondent and I so find. 

CA- 00047672-002

I noted that there was no dispute between the parties that the Respondent did not notify the Complainant of his inability to pay his statutory redundancy entitlement, and I so find.

CA- 00047672-001

Based on the findings outlined above, it is my decision that the Complainant’s case is well founded.  In these circumstances, it is my decision that the Complainant should be awarded his statutory redundancy entitlement.  I noted that the Complainant was in receipt of gross pay amounting to €409.50 per week and had 20.4 years of service at the date of termination of his employment.  On that basis I find that he is entitled to a statutory redundancy payment of €17,117.10.

CA- 00047672-002

I note that the parties agreed at hearing to proceed with making an application for the statutory redundancy payment from the National Fund pending the provision of this decision. 

Based on the findings above at CA- 00047672-001 and on the acknowledged failure of the Respondent to notify the Complainant of his inability to pay his statutory redundancy entitlement, it is my decision that this complaint is well founded.  In these circumstances and if the Respondent is still unable to pay the Complainant’s entitlements, the Respondent is instructed to co-operate with the Complainant in the provision of all necessary paperwork to enable the Complainant to claim his statutory redundancy payment from the Redundancy Payment Scheme.

Redundancy, layoff