Complainant

Respondent

Parties

Kieran  Collins

Lee Travel Limited

Representatives

Barry G. O'Meara & Co Solicitors

Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00048379-001

28/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048379-002

28/01/2022

This case involves a redundancy which occurred in July 2021, and the payment of statutory redundancy payment on foot of that redundancy. The background to the case is that the Complainant previously owned his own business, also in the travel industry, and that his business was bought out by the Respondent business and the Complainant was kept on in the role of branch manager of one of the Respondent’s branches, in Cork city. When the Covid-19 pandemic hit, the impact on the travel industry was severe.

The Respondent company made the Complainant’s role redundant, applying LIFO (Last-In-First-Out) as the criteria. The redundancy and the manner in which it was carried out are a source of much dissatisfaction to the Complainant. In particular, he feels that given his extensive experience in the industry, he offered the Respondent company suggestions and alternatives which he feels it ought to have considered and/or implemented. The Complainant’s claims are denied by the Respondent.

In any event, what is properly before me only are two complaints which pertain to statutory redundancy payment and statutory notice pay. The Complainant, who was legally represented throughout the process, elected not to sue the Respondent for unfair dismissal despite his significant dissatisfaction in relation to the fact of the redundancy and the manner in which he says it was executed. Written submissions were made in respect of a third complaint, pertaining to annual leave, which was not set out within the original complaint form.

The Solicitor for the Complainant strongly emphasised his perception that the Complainant and one of the directors/owner of the business, Mr. O’Connell, with whom the Complainant had a personal as well as a professional relationship had been social equals, both owning their own businesses; and that while the Complainant’s title subsequent to the buy-out of the Complainant’s business was “branch manager” within the Respondent business, and that as part of the deal, he became an employee of the Respondent business, that occurred in a context and did not undermine the social equality or the relationship between the two men.

The dates of the Complainant’s employment are common case, as are his earnings. He has more than 104 weeks’ service, and his entitlement to statutory redundancy payment under the Redundancy Payments Act is also common case.

The issue in this case is a dispute as to additional monies and whether the Respondent business can make deductions from a statutory redundancy payment and/or minimum notice pay.

There is dispute between the parties in relation to two items – 1. A figure pertaining to school fees and 2. A personal loan.

The Complainant denies that the monies are due and owing and the Solicitor for the Complainant further submits that the Respondent is not legally entitled to make any such deduction.

The Respondent disputes the Complainant’s claims. It submits that his contract of employment is silent with respect to school fees and does not reflect his submission pertaining to school fees forming part of his remuneration package – it submits that it is nowhere to be found in the standard employment contract issued to him, as an employee of the Respondent company. It further denies his claims in respect of the personal loan. It submits that it is entitled – relying on the employment contract – to make deductions at the end of the Complainant’s employment in respect of outstanding sums due and owing to the Respondent company, and it submits that the Complainant continues to owe the Respondent business a significant outstanding sum. This claim is flatly denied by the Complainant. The Respondent submits that the Complainant had repaid a portion of the figure pertaining to school fees which is denied by the Complainant.

Mr. O’Connell was neither proffered nor produced as a witness, by the Respondent.

In respect of notice pay, the Adjudication Officer at the hearing, allowed the Complainant an opportunity to examine his bank records and clarify post-hearing, within a prescribed time-frame, whether he had received any of the statutory notice pay due to him, which he did. He clarified that he had received one of the two weeks’ notice pay due and owing.

As per the Complaint form and written submission:

Background:

The Complainant was employed by the Respondent company on 27th October 2018 in the position/role as the Office Manager of the Pembroke Street, Cork branch of Lee Travel Limited formerly known as Heffernan’s Travel.

The Respondent furnished to the Complainant a written document headed ‘Statement of Main Terms of Employment’ which contained the wording directly below the heading:

‘This Statement, together with the Employee Handbook, forms part of your Contract of Employment and sets out particulars of the main terms on which Lee Travel Ltd, 24 Princes Street, Cork employs.’  

In or about 11th May 2021 the Complainant was requested to attend a meeting at which Mr. Declan O’Connell (one of the directors/owner) and Ms. Dympna Crowley CEO of the Respondent were present. The Complainant was informed that the purpose of the meeting was to notify him that the Respondent anticipated having to make redundancies and that his position was at risk.

The Complainant submits that on 15th July 2022 he was called to a meeting attended by Mr. O’Connell and Ms. Dympna Crowley to inform him that his position as Branch Manager was being made redundant.

The Complainant submits that immediately after the meeting, he received what appeared to be a pre-prepared letter of the same date from Ms. Crowley stating, inter alia:

“We have also taken all of your suggestions and proposals and have thoroughly looked at those alternatives throughout the consultation period and unfortunately your suggestions will not work as discussed in your consultations meetings.

Unfortunately, it has not proved possible to find any solution to the problem other than to make a compulsory redundancy.

As a result, your position of Branch Manager will be made redundant. Therefore, you will become redundant and this letter is to be treated as formal notice of dismissal due to redundancy. Attached to this letter is your redundancy payment breakdown. 

Your length of service entitles you to 2 weeks’ notice and we reserve the right to pay you in lieu of your notice period and therefore your last day of work will be today 15/07/2021 and your last day of employment will be 29/07/2021 and it needs to be noted that you are still an employee of the company during this time. 

Because your continuous service with the company is more than the requisite 104 weeks necessary to attract a Statutory Redundancy Payment, you will be entitled to any redundancy payment on termination of your employment with this company.”

The letter further stated:

“REPAYMENT OF OUTSTANDING MONIES 

On the termination of your employment we have the right to deduct from any termination pay due to you, any monies collected by you on our behalf and any advances of wages or any loans which we may have made to you. This is an express written term of your contract of employment.  Attached is the breakdown of loans owing by you to the company.

Attached to said letter was the following:

Schedule of Pay and Leave due to Kieran Collins on 15 July 2021

Redundancy payments due: Weekly Ceiling of €600 has been applied.

Employment Details

Employment Start Date: 27/10/2018

Date of Notice of Termination: 15/07/2021

Employment End Date: 29/07/2021 after 2 weeks paid in lieu of notice applied.

Gross Weekly Wage: €961.54

Wage ceiling prevailing at the time: €600

Calculation of Statutory Service {Including any breaks in service if relevant).

•        Years: 2

•        Days: 263

•        Number of years service: 2.72

•        Weeks Due: 5.44

•        Plus Bonus Week: 1

•        Total Weeks: 6.44

•        Statutory entitlement: 6.44 x €600 = €3,864.00

Annual Leave 2021:

•        11 days to July 15th

•        Annual Leave taken: 7 days

•        Balance due: 4 days= €769.23 Gross.

•        Two weeks paid notice in lieu of working €961.54 x2 = €1,932.08

•        Total Gross Payment €6,565.31

Personal loans taken by Kieran from the company:

•        Cash loan given to Kieran to pay his personal Avant Credit Card €7,050.00.

•        Credit card loan to Kieran to pay school fees with the company credit card €7,873.88 less payment €2001.73 paid back on that loan, balance on that loan=€5,872.15. Total Loans €12,922.13.

•        Less payments due from Lee Travel to Kieran, €6,565.31 gross= Amount still due from Kieran after all payments owing from Lee travel have been deducted is €6,356.82.”

The Complainant submits that he responded by email on 15th July 2021 to Ms. Crowley pointing out that no deductions of any kind could be applied to the statutory payments due to him under the legislation, by way of redundancy including annual leave and payment in lieu of notice and requested that he be paid in full. The Complainant also pointed out that any additional sums claimed by the Respondent did not form part of the contract and were not correct. [Adjudication Officer’s Note: In the letter of 15th July 2021, the Complainant stated that none of the additional figures formed part of his remuneration under his employment law contract. In his evidence, at the hearing, he stated that the school fees figure formed part of his remuneration.]

The Respondent replied simply stating to the Complainant to:

 “Please ensure you deliver all other handover documents, office keys etc, as requested earlier, to me before 4pm”

“This letter is to clarify that you are being paid in lieu of notice for the remainder of your notice period, your last day of employment with Lee Travel Limited will be 29th of July 2021.”

“There is no need for you to report to work from today onwards. Please be aware you are now in receipt of a reasonable management instruction not to return to the office after close of business today. If you ignore this request we may have to consider disciplinary or civil action.”

The Complainant submits that the Respondent then locked the Complainant out of his work computer and, further, changed the locks to the office premises.

On 29th July 2021, the Complainant submits that he did not receive any of the statutory payments due to him included redundancy, annual leave and payment in lieu of notice.

The Complainant’s Solicitor wrote to the Respondent on 30th July 2021 requesting the payment of the statutory payments due to the Complainant totalling €8,680.69 made up as follows:

Redundancy payment:                €3,864.00

Payment in Lieu of Notice: €1,932.08 [Adjudication Officer’s Note: This figure relates to two weeks of statutory notice pay. The correct figure outstanding was subsequently clarified to be one week, as one week of statutory notice pay had been received by the Complainant.]

The Law

The Complainant submits that the Respondent was not entitled to withhold or deduct any sums claimed or allegedly due from the statutory payments due to the Complainant, and further seeks to rely upon ‘The Lee Travel Limited Employee Handbook’ which it submits forms part of the Statement of Main Terms of Employment. In particular, it highlights, references in section 3, page 47: ‘Redundancy Policy’ that should circumstances arise where redundancy is seen to be a possibility the Company will ensure it complies with relevant legislation. It submits that the Redundancy Policy section is separate from the section headed ‘Termination of Employment’ at page 17 and makes no reference as to what is to happen when employment is terminated by redundancy other than to comply with the legislation.

The letter of terminating Complainant’s position by redundancy states:

REPAYMENT OF OUTSTANDING MONIES 

On the termination of your employment we have the right to deduct from any termination pay due to you, any monies collected by you on our behalf and any advances of wages or any loans which we may have made to you. This is an express written term of your contract of employment.

The Complainant submits that no monies were collected or any advances of wages made or loans were made to Complainant and the way in which the Respondent set out its calculations in its letter dated 15th July 2021 was misleading and inaccurate.

It is submitted that no such clause was contained in the Statement of Main Terms of Employment.

Claim for Annual Leave – Out of time?

In relation to the claim for annual leave, there was dispute between the parties as to the number of days outstanding, with the Respondent company submitting (without prejudice to its preliminary argument that the complaint was statute barred), that the Complainant (along with other employees) had voluntarily rescinded some of his annual leave days, as part of cost-cutting measures, on foot of the Covid-19 pandemic. The Complainant denied this, submitting that he had agreed to that on contingency that he would not be subsequently let go, and that in the event that he was let go, his full complement of annual leave days was due and owing to him by the Respondent company.

The Solicitor for the Complainant submitted, in response to the Respondent’s preliminary argument that the claim for annual leave had not been filed in time (i.e. in the complaint form), and was only raised subsequently by way of the written submissions, that he took the claim filed for redundancy payment to encompass all of an employee’s entitlements upon being made redundant.

The Complainant, Mr. Kieran Collins, gave evidence on his own behalf, at the hearing:

He outlined his work history and his role and explained the sequence of events in relation to the redundancy. The Complainant expressed the view that one figure (in respect of school fees) formed part of his remuneration package at the Respondent company; and that a second figure (a loan to cover a credit card) was a personal loan from Mr. O’Connell to be repaid to Mr. O’Connell by the Complainant upon the sale of the Complainant’s house, and exists outside the employment contract and employment relationship, which is the subject matter of these proceedings. He said that when he joined the business, Mr. O’Connell told him that he “couldn’t have anyone working in the business who was earning more than himself.” The Complainant explained, however, that there were some additional “bits and pieces” which “were a way of getting a little bit more”, which were given to him as part of his remuneration, and one of those items was the cost his children’s private school fees being covered by the Respondent business.

He acknowledged that that figure pertaining to the credit card loan had not been repaid to Mr. O’Connell despite the fact that the Complainant had sold his house (and that that had been the agreement). His evidence was that the school fees for the academic year 2019/2020 had been paid by the Respondent business but that the fees for 2020/2021 had not been paid – and that he had not put pressure on for them to be paid as he was understanding of the financial situation surrounding Covid-19 – but that the expectation was that post-pandemic when things improved, they would be paid again in due course, by the Respondent business.

He explained that the school fees figure owed to him (in respect of the academic year 2020/2021) was approximately €7,000 and the amount he owed in respect of the credit card loan was approximately €7,000 and that, in his mind, he cancelled one against the other having not pressured Mr. O’Connell for that year’s school fees when they fell due at the start of the academic year, because the Covid-19 pandemic had occurred and he understood the impact of that situation (but was fully expecting that in due course, when things were back on track, his children’s school fees would be covered by the Respondent business). The school fees were paid by credit card.

In terms of annual leave, the Complainant explained that he had only agreed to forgo some of his entitlement to annual leave, on condition that things did not change, i.e. that he was not let go. He said that when it was requested of staff that they forgo some of their annual leave entitlement, as part of cost-cutting measures, on foot of the Covid-19 pandemic, he had only agreed to that (by email) on contingency that he would not be subsequently let go, and that in the event that he was let go, his full complement of annual leave days was due and owing to him by the Respondent company. He said that the email was sent from his work computer and that when he was locked out of his work computer, having been made redundant, he no longer had access to the relevant email, but that the Respondent company should have access to it.

On cross-examination

The Complainant was challenged on his version of events. He was challenged in relation to the monies the Respondent business says was owing to it. It was put to him that the employment contract he signed entitled the Respondent business to make deductions. It was put to him that nowhere in the contract was there any mention of school fees or other loans. It was put to him that he had repaid a portion of the figure in relation to school fees, which he denied. It was put to him that the Respondent business had treated him very reasonably, which he flatly denied, both in terms of the manner in which the redundancy was carried out, the fact he was let go, and the failure to pay redundancy payment.

It was put to him that there was a disparity between his previous position outlined in his letter of July 15th and the position that he was now advancing in relation to the role the figure for school fees played. The Complainant re-iterated his position that the school fees formed part of his remuneration, that he did not owe and had not paid anything back in relation to that figure, that one year’s fees had been fully paid by the Respondent company as agreed; that the following year, due to the pandemic, the company did not pay the school fees and he did not push for them to be paid (but that the fees were actually due to be paid by the business, and formed part of his remuneration package), that his full expectation was that they would be paid in due course once the business was back on track; and that the figure pertaining to the loan in relation to the Complainant’s personal credit card was a personal loan outside the business and the employment relationship, which was due to be repaid to Mr. O’Connell directly, once he sold his house which he had done.

The Complainant explained again that he had done a simple straight-line calculation (in his head) cancelling the school fees figure owed by the business to him against the personal loan figure owed by him to Mr. O’Connell (as they were both in the region of €7,000). He re-iterated that he was owed statutory redundancy pay, minimum notice pay and pay in respect of untaken annual leave by the Respondent business.

As per the Respondent’s written submissions

The Respondent, Lee Travel Ltd., operates an established travel agent’s business from several offices in Cork city and county. 

In or around 2018, the Respondent purchased the travel agent’s business known as Heffernan’s Travel, Pembroke Street, Cork from Mr. Kieran Collins, the Complainant.

Thereafter, the Complainant was employed by the Respondent as a manager at the business premises known as ‘Heffernan’s Travel’, Pembroke Street, Cork.

The Complainant was employed under a contract of employment dated 11th December 2018, which specified the commencement date for the contract as 22nd October 2018.

The Complainant lodged the following claim with the WRC on 28th January 2022:

·       A complaint under section 39 of the Redundancy Payment Act 1967 alleging that he did not receive any redundancy payment from the Respondent.

·       A complaint under section 12 of the Minimum Notice and Terms and Conditions Act 1973 in relation to payment of wages during his statutory notice period of two weeks.

The Respondent wholly denies each of these claims lodged by the Complainant.

Preliminary Issue – Claim in respect of Annual Leave is statute-barred - Organisation of Working Time Act 1997 (Section 19) 

Section 41(6) of Workplace Relations Act 2015 provides as follows:-  “…an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The Complainant, in submissions (at paragraph A) made on his behalf, attempts to introduce, for the first time, a claim that the Complainant did not receive payment in relation to untaken holidays/annual leave up to the date of his redundancy.

The Respondent contends that the time frame for bringing this complaint, within the prescribed period of 26 weeks, expired on 29th January 2022. It is respectfully submitted that this claim had not previously been made and is out of time as at the date of the submissions.

The Complainant has not provided any explanation for his delay in making his claim to the WRC and has failed to show ‘reasonable cause’ for the purposes of seeking a time extension pursuant to Section 41(8) of the Workplace Relations Act 2015 which states as follows: -

‘An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.’

The Respondent is relying on the decision of the Labour Court in the case of Patrick Hoare & Sons Limitedand Liam Donnelly UDD 173, which sets out the parameters of ‘reasonable cause’ where it quotes from the Labour Court decision in the case of Cementation Skanska (formerly Kvaerner Cementation) Limited and Michael McGrath DWT 0342 as follows:

‘It is the Court's view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say, it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present, he or she would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.’

The decision also refers to the decision of Laffoy J. in the High Court case of Minister for Finance and CPSU & Others 2007 18 ELR  36, where it was held that ignorance of legal rights cannot constitute a ‘reasonable cause’ for not observing statutory time limits.

The Respondent cites the High Court decision in O'Donnell v Dun Laoighaire Corporation [1991] ILRM 301 where Costello J held:- "It is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings."

It is the Respondent’s submission that the Complainant’s delay means that the Commission has no jurisdiction to hear this claim and that the Commission should not extend the statutory time limit pursuant to Section 41(8) of the Workplace Relations Act 2015 as the Complainant has not shown a ‘reasonable cause’ for his delay in lodging these claims.

CA-00049379-001 – Redundancy Claim:

As a direct consequence of the Covid-19 pandemic resulting in the collapse of the travel industry, the Respondent suffered significant financial losses and by May 2021, it became apparent that cost saving measures would be required, which included the prospect of redundancies at the company.

Mr. Declan O’Connell, Managing Director of the company and Ms. Dympna Crowley CEO were tasked with devising a cost cutting plan for the Respondent company. 

Of the five travel agent’s business premises operated by the Respondent, one of the offices at Princes Street, in Cork City centre (‘the Princes Street Branch’) was permanently closed, in September 2020. This resulted in the need to scale down on the number of Branch Managers at the Respondent Company.

Due to the company’s significant financial difficulties precipitated by the pandemic, the CEO compiled a business plan dated 25th February 2021, where it was decided to scale down the Respondent’s business costs. The initial ‘at risk’ consultation with all branch managers took place on or around 11th May 2021 when all the branch managers, including the Complainant, were advised of the downturn in business and the need to reduce staffing. At that meeting, the position of ‘Branch Manager’ was identified as an ‘at risk’ position.

A plan was announced to reduce the number of branch managers due to the closure of the Princes Street Branch, in September 2020. Specifically, it was indicated that the number of branch manager positions would be reduced by one, following the redundancy process. There were no alternative positions available or advertised within the company at the relevant time.

Additional cost saving measures were communicated at the ‘at risk’ stage including the potential for hybrid working and reduced hours for remaining staff.

The criterion for the selection of employees for redundancy (if required) was notified to all branch managers at the ‘at risk’ stage of the process as well as at the subsequent consultation meetings, as being ‘Last in First Out’ (LIFO),which was the criterion used for a previous redundancy, in October 2020. Of the ‘at-risk’ category of employees (i.e. the branch managers), the Complainant had the shortest length of service having just over two years’ service with the Respondent. 

There was a further meeting held with the Complainant on 20th May 2021. He was invited to make suggestions and informed that he was entitled to have a representative present.

The Complainant’s role was ultimately made redundant in July 2021. He did not appeal the decision.

The Respondent submits that it acknowledged in its outcome letter of redundancy to the Complainant, that he was entitled to receive a statutory redundancy payment in the sum of €3,864. In addition, the Respondent submits that it acknowledged that payment for the two weeks’ notice period amounted to the sum of €1,932.08 and four (4) days annual leave was owing to the Complainant amounting to the sum of €729.63. It is further submitted that the redundancy outcome letter indicated that significant sums were due and owing by the Complainant to the Respondent amounting to the total sum of €12,922.13.

CA-00049379-002 - Minimum Notice Claim

It is submitted that the Complainant’s contract of employment included the following deduction from pay clause:-

“Deduction From Wages

I confirm that I have read, understood and agree to the policies in relation to the deduction from wages and agree that the company may make deductions in line with the procedures set out in the Employee Handbook and Deduction Policy.”

It is further submitted that the Termination of Employment Policy at P. 17 of the Employee Handbook provides as follows: -

“E. Repayment of Outstanding Monies

‘On the termination of your employment, we have the right to deduct from any termination pay due to you, any monies collected by you on our behalf and any advanced wages or any loans which we may have made to you. This is an express written term of your contract of employment.”

Irrespective the Respondent’s entitlement to recover monies owed to it by the Complainant by means of civil proceedings, it is Respondent’s position that it was contractually entitled to deduct any sums due to it on foot of any loan arrangement with the Complainant, from the wages due to the Complainant in respect of the notice period, in accordance with the above contractual terms.

Without prejudice to the above entitlement, it is submitted that the Respondent on an ex-gratia basis paid the Complainant for one week’s statutory notice in accordance with its payslip to the Complainant dated the 22ndJuly 2021 (Copy of payslip submitted.)

Mr. Dymphna Crowley, CEO of the Respondent company gave evidence, at the hearing, on behalf of the Respondent company.

Ms. Crowley explained her role and the structure of the business. She outlined the difficult financial situation in which the company found itself, as a result of the Covid-19 pandemic, especially given it was a travel business. She outlined that due to the closure of one branch of the business, that there was a need to reduce the number of branch managers by one (1). She outlined the consultation and redundancy process. She explained that a system of Last-In-First-Out (LIFO) was applied, and that they thought it was the fairest approach. She explained that there were no other jobs or options available at the time, given the situation. The witness relied upon the employment contract issued to all employees in relation to the terms of the Complainant’s employment, and explained that no employee had school fees paid as part of their remuneration package, to her knowledge, and that it certainly did not form part of the standard employment contract which all employees were issued.

She further pointed to the entitlement to make deductions, as per the contract. She said that there had been a genuine consultation process, that all suggestions had been considered but that the economic situation was very grave, that it was really about “trying to keep the doors open” at that stage, given the severe impact of Covid-19 and the attendant restrictions on businesses and their disproportionate impact on the travel industry. She said that on the day, the Complainant was upset that he was being let go – she said that she understood that, that it would be an upsetting time for anyone – and that he said words to the effect of: “So, that’s it then.”

On cross-examination

The fact the Complainant felt aggrieved as to how the redundancy process was handled was put to the witness. Potential deficits in the process were raised with her (insufficient notice in relation to the convening of a meeting; the nature of the representative offered etc.) along with the fact that the Complainant felt there were alternative options which could have been explored. Ms. Crowley denied this. She said that there was no other option, that the economic situation was dire and that there had been a genuine process, with a series of meetings and genuine engagement with the Complainant but there were just no other jobs in the business or options available, at the time. The Complainant’s offence at the locks being changed on the building and his access to his work computer abruptly ending was raised with the witness. She re-iterated that it had been an upsetting time, and that the Complainant had been upset on the day which she felt was understandable but that this had raised a concern for the business, which is what had led to the locks being changed.

Ms. Crowley was challenged on her knowledge of the remuneration arrangements and the financial arrangements between the Complainant and Mr. O’Connell. The nature of the long-standing relationship between the two men was put to her as was the fact that the Complainant was therefore in a different position to other persons holding the role of “branch manager” within the Respondent business. It was put to her that the personal loan existed entirely outside the Respondent business and that she was not in a position to provide any information in relation to it (and that the business was not entitled to make any deduction in relation to it).

It was put to her that the Complainant denied making any re-payment to the business in respect of the school fees figure, something that had been asserted and that is stated in the Respondent’s letters and submissions.

Ms. Crowley was not in a position to give evidence of interactions and conversations to which she was not a party.

While a significant amount of dissatisfaction was expressed, by the Solicitor for the Complainant at the manner in which his client was made redundant and the alleged lack of processes pertaining thereto, none of that was before me for determination – it was submitted, that after careful consideration, the Complainant had decided that he did not wish to file a claim under the Unfair Dismissals Act, that “that was not a road he wished to go down.”

What is properly before me for determination is two-fold:

1.       The matter of statutory redundancy payment, and whether the Respondent can off-set any monies alleged to be owing to it, against that statutory redundancy payment.

2.       Whether statutory notice pay was properly paid and whether any monies are outstanding.

Written submissions were made in respect of annual leave. However, no claim was filed in respect of it, within the prescribed time-frame as set out in the legislation, and, having carefully examined the contents of the complaint form, and considered the matter, I find that I have no jurisdiction in respect of the claim pertaining to Annual Leave, under the Organisation of Working Time Act 1997 as no “reasonable cause” was advanced for the time-frame to be extended.

I found the Complainant to be a cogent and credible witness. Having considered the submissions and the evidence, I accept the Complainant’s oral evidence that his children’s school-fees formed part of his remuneration, which he received from the Respondent business, and that when he joined the business Mr. O’Connell told him that he “couldn’t have anyone working in the business who was earning more than himself”, but that there were some additional “bits and pieces” which “were a way of getting a little bit more”, which were given to him as part of his remuneration, and one of those items was his children’s private school fees being covered by the Respondent business. I accept that the pro-forma employment contract issued to all employees did not address this point. That, however, does not mean that it did not form part of his remuneration. Under s. 1(1) of the Payment of Wages Act 1991, a ‘contract of employment’ is interpreted to include:  a contract ‘whether the contract is express or implied and if express, whether it is oral or in writing.’ (emphasis added) I do not accept the Respondent’s position that the pro-forma contract captures the totality of the situation in respect of the Complainant’s employment and his remuneration in respect of it.

Secondly, I accept the Complainant’s uncontested evidence that the loan made to him in respect of his credit card was a personal loan from Mr. O’Connell (the owner of the Respondent business) which was to be re-paid to Mr. O’Connell once the Complainant had sold his home. I find that the Respondent business is not party to that transaction, and therefore that personal loan between the two men is not a matter properly before me. I find that it does not form part of the Complainant’s remuneration in relation to his employment with the Respondent business.

The Respondent sought to rely upon the pro-forma employment contract it had issued to the Complainant, but Mr. O’Connell was not produced as a witness and nor was there any supporting documentation or evidence/records, in support of its claims made on behalf of the Respondent business. Ms. Crowley was not party to the relevant interactions and was therefore simply not in a position to give relevant evidence of many of the matters raised. For clarity, I found her to be a truthful and honest witness, who was forthcoming and credible, but she was not in a position to give evidence in relation to several matters relevant to the case herein. The failure to produce Mr. O’Connell as a witness is the Respondent’s prerogative and I am entitled to draw inferences therefrom.

At the hearing on 01/06/2023, the Adjudication Officer gave the Complainant one clear week (until 09/06/2023) to clarify whether any pay in lieu of notice had been received by him, and a further week for the Respondent (16/06/2023) to comment in relation to the Complainant’s clarification on that matter only. There were substantial unsolicited post-hearing correspondences on behalf of both parties. All other information/correspondences from either party submitted post-hearing were unsolicited and do not form part of the case.

I find that the Respondent business, which is an incorporated entity, has not established that it is owed money by the Complainant, nor that it is entitled to deduct said monies from the notice pay monies still outstanding. It is unclear why the Respondent business paid one week’s notice pay but not the second. The Respondent is not entitled to deduct money from the statutory redundancy payment, which it is common case is owed to the Complainant, on foot of his redundancy.

CA-00048379-001 – In respect of statutory redundancy payment, I find that the Respondent company is not entitled to make deductions in the manner in which it has purported to do.

Based on the evidence of the parties, I allow the Complainant’s appeal under Clause 7.2 (a) and I award him 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: 27/10/2018

Date of Reckonable Service for Redundancy Payment Ceasing on: 29/07/2021

Gross Weekly Wage: Capped at €600 (as the Complainant earned in excess of the cap)

The Complainant’s 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.

Subject to the above, I direct the Respondent company to pay the Complainant the full amount of his statutory redundancy payment within 42 days of the date of this decision.

CA-00048379-002 – I find that one week’s statutory notice pay (of the two weeks’ notice pay owed to the Complainant, based on his length of service) is still outstanding and I direct the Respondent to pay the Complainant the amount of €979.54 within 42 days of the date of this decision.

Redundancy Payment; Statutory Notice Pay; Personal Loan; Write-off; Untaken Annual Leave; Statute-barred; Out of Time;