Complainant

Respondent

Parties

Gavin  Croke

Eat Street Ltd Bell And Bear Coffee

Representatives

Norman Croke

Ciara Byrne & Ian Fowler

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-00047658-001

14/12/2021

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

CA-00047658-004

14/12/2021

The Complainant was employed as Chef with the Respondent from 11th December 2016.

CA-00047658-001 & CA-00047658-004

The Complainant was employed on a weekly wage of €480.00. He was laid off in March 2020 due to Covid-19 restrictions. On 23rd August 2021 he wrote to the company seeking information regarding reopening. He was informed the company lease expired in the lockdown. On 17 September 2021 he wrote seeking his redundancy payment, holidays and notice entitlements. He was informed employees could not trigger redundancy until 30th September 2021. On 6th October 2021, the Complainant referred to the company’s email, said his place of work no longer exists and sought his redundancy payment, holidays, public holidays and notice entitlements. He sent an RP9 by registered post on 14th October 2021 notifying of his intention to claim redundancy lump sum payment. By registered post on 2nd December 2021 he gave seven days to pay monies due otherwise he would make a claim to the WRC.

The employer took issue with the Complainant working elsewhere while on lay off.  The Complainant gave evidence that he checked he was able to work elsewhere while waiting for the restaurant to reopen. He has been working thirty hours per week elsewhere since summer of 2020. The employer refused to pay redundancy even though no date was given notifying him of resumption of work. The Complainant was denied access to the special payments for laid off workers made redundant following Redundancy Payments (Amendment) Act 2022.

The Respondent notified staff of their unpaid temporary lay-off due to Covid-19 on 16th March 2020.

The company lease was due to expire in December 2020. The restaurant had extensive renovations which were expensive for the company. The Respondent arranged to extend the lease until 30th September 2021 and were actively seeking another premises.  

The Respondent became aware that the Complainant was working in other venues during the period of temporary lay-off as they are neighbours. The Respondent says the Complainant was working as a chef for his own catering business, and was in other employment as a Chef. The Complainant did not resign although he was working elsewhere. The regional lockdowns made it difficult for the business to reopen and they began looking for another premises.

 The Complainant’s contract of employment required exclusivity in employment. The Respondent says the Complainant was unavailable for work and had taken he resigned as he had other work. The Complainant breached the terms of his contract of employment. Relations became strained.

The Respondent informed the Complainant about the lease extension in July 2021 and kept him appraised about the restaurant reopening. The restaurant has not reopened.

I heard and considered the oral evidence and written submissions of the parties.

CA-00047658-004 is withdrawn as holidays due have been paid.

The Complainant was employed from 11th December 2016 as chef of the Respondent. He was placed on temporary lay-off on 16th March 2020. The restrictions and regional lockdowns impacted on the Respondent’s return to work. The restaurant lease was extended up to 30th September 2021 but the owners were unable to obtain a smaller unit. Occupancy in the industrial estate has been low since the pandemic. The restaurant has not reopened.

The Complainant was informed the lease of the premises had expired. On 6th October 2021, the Complainant sought his redundancy payment, holidays, public holidays and notice entitlements. He sent an RP9 by registered post on 14th October 2021 notifying of his intention to claim redundancy lump sum payment.

S 7. of the Redundancy Payments Act 1967 provides:

(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 […], 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.

S12 of the Act provides that where an employee has

(a) 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 writing of his intention to claim redundancy payment in respect of lay-off or short-time….

S12A of the Redundancy Payments Act 1967 provides that between 13 March 2020 and 30 September 2021 due to S29 of Emergency Measures in the Public Interest (Covid-19) Act 2020, the right of an employee to serve notice seeking redundancy was postponed. It is accepted the Complainant was on lay-off from 13th March 2020 until 30th September 2021 and was laid off for the requisite period required by S12 of the Act. On 14th October 2021, the Complainant served notice seeking payment of redundancy lump sum. No counter- notice was served by the company confirming that it was reasonably to be expected that the Complainant would within four weeks after that date, be employed for a minimum of thirteen weeks during which he would not be laid off or kept on short-time for any week.

I find the complaint is well founded and direct payment of statutory redundancy lump sum to the Complainant based on his service from 11th December 2016 until 30th September 2021, at his weekly gross rate of pay of €480.00 per week, taking into account lay off from 16th March 2020 until 30th September 2021 by the Respondent. In addition, I direct payment of notice entitlement of two weeks in accordance with the Minimum Notice and Terms of Employment Act 1973 of €480.00 per week to the Complainant by the Respondent.

The complaint is well founded. I direct payment of statutory redundancy lump sum to the Complainant based on his service from 11th December 2016 until 30th September 2021, at his weekly gross rate of pay of €480.00 per week, taking into account lay off from 16th March 2020 until 30th September 2021 by the Respondent to the Complainant. I direct payment of notice entitlement of two weeks in accordance with the Minimum Notice and Terms of Employment Act 1973 of €480.00 per week to the Complainant by the Respondent.

Statutory redundancy, resignation