Complainant

Respondent

Parties

Linda  MacDonald

The Yellow Phoenix Limited

Complainant

Respondent

Anonymised Parties

Representatives

 Self-Represented 

Self-Represented

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-00054213-001

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054213-002

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054213-003

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054357-001

05/01/2023

The Complainant commenced employment with the Respondent on 12th September 2018. The Complainant was a permanent, full-time member of staff in receipt of a weekly payment of €577.50 per week. The Complainant alleged that her employment terminated on 13th November 2022.

On 21st December 2022, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that the termination of her employment was in fact a redundancy within the meaning of the Act. In denying this complaint, the Respondent submitted that the Complainant had been offered alternative employment, and that her failure to avail of the same disapplied the payment of statutory redundancy. The Complainant further alleged that unauthorised deductions were taken from her wages and that she did not receive a contract of employment.

A hearing in relation to this matter was convened for, and finalised on, 9th June 2023. Both parties issued written submission in advance of the hearing with the same being expanded upon and contested during the hearing itself. The Complainant gave evidence in support of her complaints, while the Managing Director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross-examination by the opposing side.

In evidence, the Complaint stated that she was engaged as a baker with the Respondent. She stated that she worked 30 hours per week, usually during the night. The premises where the Complainant worked closed on 14th November 2022, and the Respondent ceased trading thereafter.

When the premises ceased trading, the Complainant was offered an alternative employment to commence the following February. The Complainant was unwilling to spend the interim period of time without employment and served Form RP9, seeking her redundancy payment from the Respondent. The Respondent refused to pay said statutory redundancy stating that an alternative role was available for the Complainant in the proposed new premises.

The Complainant further submitted that she did not receive a written statement of terms at any stage of her employment. Finally, she submitted that her wages were subject to an unlawful deduction in January 2022. In answer to a question posed by the Adjudicator, the Complainant submitted that she did not refer this complaint within six months as she was attempting to resolve the matter locally with the Respondent.

The Respondent agreed that the Complainant was employed as a baker at their Sligo address. On 22nd September 2022, the Managing Director met with the Complainant and informed her that the premises at which she worked was due to close on 31st October 2022. At this point, the Complainant was informed that her role would continue at a premises that the Respondent intended to open in the coming weeks. In this regard, it was proposed that this premises would open in the following months, and that the Complainant would remain on temporary lay-off until that time. The Managing Director informed the Complainant that the role would be the same, with the same rate of pay albeit subject to a reduction in hours.

In October, the parties mat again, with the Complainant serving form RP9 on the Respondent. The Respondent expressed surprise at this as the Complainant had not been made redundant and had been offered alterative employment. On 26th October, the Complainant was informed that the premises would remain open until 1st December, with the new premises opening on 1st December. On 5th November, the Complainant was asked about her availability to work at the new premises, no response was received to this communication. As the Respondent experienced significant staffing issues, including the non-availability of the Complainant, the premises did not open on 1sr December as planned.

Notwithstanding the foregoing, the Respondent still intended to re-open the premises in the coming February. In this regard, the Respondent met with the Complainant again on 15th December in respect of the same. During this meeting, the Complainant again served a copy of form RP9 and requested to be made redundant. The Complainant was again asked to confirm her position regarding the forthcoming opening of the premises, however on 24th December she declined the offer of alternative employment.

In answer to a question posed by the Adjudicator, the Managing Director accepted that the premises did not in fact open in February as anticipated. The rationale for the same was the ongoing staffing issues experience by the Respondent.

In summary, the Respondent submitted that the Complainant was not made redundant at any stage. They submitted that a reasonable alternative to redundancy was available at all times and the Complainant’s failure to accept the same disqualified her from a statutory redundancy payment.

Regarding the issue of a contract, the Respondent submitted that they utilised software that would automatically produce and email a contract of employment to the Complainant. They further denied that any wages due and owing to the Complainant and submitted that the issues complained of are matters for revenue.

Complaint CA-00054313-001 – Complaint under the Redundancy Payments Acts

In the present case, the Complainant has submitted that she is entitled to a statutory redundancy payment following the closure of her place of work. In denying this allegation, the Respondent has submitted that the Complainant was offered alternative employment, and that her failure to accept the same disentitled her to a redundancy payment.

In this regard, Section 7(2)a of the Redundancy Payments Acts lists the following situation as a valid ground for redundancy;

“…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”. Having regard to the foregoing, it is apparent that the closure of the Respondent’s premises on 14th November 2022 would, ordinarily, entitle the Complainant to a payment of statutory redundancy.

Notwithstanding the same, the Respondent has submitted that the Complainant was placed on lay-off on that date, with the alternative employment being offered in a proposed new location. In this regard, Section 11 of the Act provides that lay-off occurs whereby,

“…an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation….”

Thereafter, Section 12(1) provides that,

“An employee shall not be entitled to redundancy payment by reason of having been laid off…unless (a) he has been laid off…for four or more consecutive weeks…and (b) after the expiry of the relevant period of lay-off…mentioned in paragraph (a)…gives to his employer notice…writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Section 13 of the Act then provides as follows,

(1)    “Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2)    Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.”

Regarding the instant case, it is apparent that the Complainant was placed on lay-off on 14th November 2023. While the Respondent had attempted to arrange an alternative employment in a new premises for the coming December, this did not materialise and on 15th December 2022, the Complainant served notice of her intention to trigger statutory redundancy in accordance with Section 12 referred to above. The Respondent’s position is that they then made a counter-offer as described by Section 13 above.

Taking this submission at its height, and it should be noted that various issues arise as to the suitability of the alternative employment and the validity of the Complainant’s lay-off in the absence of an express contract provision in respect of the same, it is apparent that the offer of employment was due to commence some months following the service of the notice. In circumstances whereby Section 13 expressly provides that such alternative employment must commence “not later than four weeks after” the service of the notice under Section 12, I find that the offer of alternative employment does not meet the criteria outlined in Section 13.

As a consequence of the foregoing, I find that the Complainant is entitled to a statutory redundancy payment in accordance with Section 12. Having regard to the same, I find that the Complainant’s appeal succeeds and her complaint is well-founded.

Regarding the complaint in respect of the Complainant’s terms of employment, the Complainant’s evidence was that she never received any written statement of terms. While the Respondent submitted that such terms should have been automatically generated, the Complainant’s evidence is that she did not have sight of the same. Having regard to the foregoing, I find that this complaint is well-founded.

In relation to the complaint under the Payment of Wages Act, it is apparent that the breach complained of occurred in excess of six months prior to the referral of the complaint.  In seeing to extend the cognisable period for the purposes of the present Act, the Complaint submitted that she had been seeking to resolve this matter at a local level prior to referring the same to this forum.

In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

Having regard to the foregoing, I find that the Complainant has not established “reasonable cause” so as to allow the cognisable period of the Act to be extended.

Complaint CA-00054213-001 – Complaint under the Redundancy Payments Acts

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the complainant has established the existence of a redundancy situation and the appeal succeeds.

I find that the complainant is entitled to a statutory redundancy payment based on the following:

Date employment commenced:  12th September 2018

Date Employment ceased:           14th November 2022

Gross Weekly wage:                      €577.50

The entitlement is contingent on the complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

Complaint CA-00054213-002 – Complaint under the Payment of Wages Act  

I find that this complaint is not well-founded.

Complaint CA-00054213-003 – Complaint under the Payment of Wages Ac

I find that this complaint is not well-founded.

Complaint CA-00054357-001 – Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €1,732.50, or the equivalent of three weeks’ remuneration, in compensation.

Redundancy, Lay-Off, Section 12, Counter Notice

Complainant

Respondent

Parties

Linda  MacDonald

The Yellow Phoenix Limited

Complainant

Respondent

Anonymised Parties

Representatives

 Self-Represented  

Self-Represented

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-00054213-001

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054213-002

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054213-003

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054357-001

05/01/2023

The Complainant commenced employment with the Respondent on 12th September 2018. The Complainant was a permanent, full-time member of staff in receipt of a weekly payment of €577.50 per week. The Complainant alleged that her employment terminated on 13th November 2022.

On 21st December 2022, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that the termination of her employment was in fact a redundancy within the meaning of the Act. In denying this complaint, the Respondent submitted that the Complainant had been offered alternative employment, and that her failure to avail of the same disapplied the payment of statutory redundancy. The Complainant further alleged that unauthorised deductions were taken from her wages and that she did not receive a contract of employment.

A hearing in relation to this matter was convened for, and finalised on, 9th June 2023. Both parties issued written submission in advance of the hearing with the same being expanded upon and contested during the hearing itself. The Complainant gave evidence in support of her complaints, while the Managing Director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross-examination by the opposing side.

In evidence, the Complaint stated that she was engaged as a baker with the Respondent. She stated that she worked 30 hours per week, usually during the night. The premises where the Complainant worked closed on 14th November 2022, and the Respondent ceased trading thereafter.

When the premises ceased trading, the Complainant was offered an alternative employment to commence the following February. The Complainant was unwilling to spend the interim period of time without employment and served Form RP9, seeking her redundancy payment from the Respondent. The Respondent refused to pay said statutory redundancy stating that an alternative role was available for the Complainant in the proposed new premises.

The Complainant further submitted that she did not receive a written statement of terms at any stage of her employment. Finally, she submitted that her wages were subject to an unlawful deduction in January 2022. In answer to a question posed by the Adjudicator, the Complainant submitted that she did not refer this complaint within six months as she was attempting to resolve the matter locally with the Respondent.

The Respondent agreed that the Complainant was employed as a baker at their Sligo address. On 22nd September 2022, the Managing Director met with the Complainant and informed her that the premises at which she worked was due to close on 31st October 2022. At this point, the Complainant was informed that her role would continue at a premises that the Respondent intended to open in the coming weeks. In this regard, it was proposed that this premises would open in the following months, and that the Complainant would remain on temporary lay-off until that time. The Managing Director informed the Complainant that the role would be the same, with the same rate of pay albeit subject to a reduction in hours.

In October, the parties mat again, with the Complainant serving form RP9 on the Respondent. The Respondent expressed surprise at this as the Complainant had not been made redundant and had been offered alterative employment. On 26th October, the Complainant was informed that the premises would remain open until 1st December, with the new premises opening on 1st December. On 5th November, the Complainant was asked about her availability to work at the new premises, no response was received to this communication. As the Respondent experienced significant staffing issues, including the non-availability of the Complainant, the premises did not open on 1sr December as planned.

Notwithstanding the foregoing, the Respondent still intended to re-open the premises in the coming February. In this regard, the Respondent met with the Complainant again on 15th December in respect of the same. During this meeting, the Complainant again served a copy of form RP9 and requested to be made redundant. The Complainant was again asked to confirm her position regarding the forthcoming opening of the premises, however on 24th December she declined the offer of alternative employment.

In answer to a question posed by the Adjudicator, the Managing Director accepted that the premises did not in fact open in February as anticipated. The rationale for the same was the ongoing staffing issues experience by the Respondent.

In summary, the Respondent submitted that the Complainant was not made redundant at any stage. They submitted that a reasonable alternative to redundancy was available at all times and the Complainant’s failure to accept the same disqualified her from a statutory redundancy payment.

Regarding the issue of a contract, the Respondent submitted that they utilised software that would automatically produce and email a contract of employment to the Complainant. They further denied that any wages due and owing to the Complainant and submitted that the issues complained of are matters for revenue.

Complaint CA-00054313-001 – Complaint under the Redundancy Payments Acts

In the present case, the Complainant has submitted that she is entitled to a statutory redundancy payment following the closure of her place of work. In denying this allegation, the Respondent has submitted that the Complainant was offered alternative employment, and that her failure to accept the same disentitled her to a redundancy payment.

In this regard, Section 7(2)a of the Redundancy Payments Acts lists the following situation as a valid ground for redundancy;

“…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”. Having regard to the foregoing, it is apparent that the closure of the Respondent’s premises on 14th November 2022 would, ordinarily, entitle the Complainant to a payment of statutory redundancy.

Notwithstanding the same, the Respondent has submitted that the Complainant was placed on lay-off on that date, with the alternative employment being offered in a proposed new location. In this regard, Section 11 of the Act provides that lay-off occurs whereby,

“…an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation….”

Thereafter, Section 12(1) provides that,

“An employee shall not be entitled to redundancy payment by reason of having been laid off…unless (a) he has been laid off…for four or more consecutive weeks…and (b) after the expiry of the relevant period of lay-off…mentioned in paragraph (a)…gives to his employer notice…writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Section 13 of the Act then provides as follows,

(1)    “Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2)    Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.”

Regarding the instant case, it is apparent that the Complainant was placed on lay-off on 14th November 2023. While the Respondent had attempted to arrange an alternative employment in a new premises for the coming December, this did not materialise and on 15th December 2022, the Complainant served notice of her intention to trigger statutory redundancy in accordance with Section 12 referred to above. The Respondent’s position is that they then made a counter-offer as described by Section 13 above.

Taking this submission at its height, and it should be noted that various issues arise as to the suitability of the alternative employment and the validity of the Complainant’s lay-off in the absence of an express contract provision in respect of the same, it is apparent that the offer of employment was due to commence some months following the service of the notice. In circumstances whereby Section 13 expressly provides that such alternative employment must commence “not later than four weeks after” the service of the notice under Section 12, I find that the offer of alternative employment does not meet the criteria outlined in Section 13.

As a consequence of the foregoing, I find that the Complainant is entitled to a statutory redundancy payment in accordance with Section 12. Having regard to the same, I find that the Complainant’s appeal succeeds and her complaint is well-founded.

Regarding the complaint in respect of the Complainant’s terms of employment, the Complainant’s evidence was that she never received any written statement of terms. While the Respondent submitted that such terms should have been automatically generated, the Complainant’s evidence is that she did not have sight of the same. Having regard to the foregoing, I find that this complaint is well-founded.

In relation to the complaint under the Payment of Wages Act, it is apparent that the breach complained of occurred in excess of six months prior to the referral of the complaint.  In seeing to extend the cognisable period for the purposes of the present Act, the Complaint submitted that she had been seeking to resolve this matter at a local level prior to referring the same to this forum.

In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

Having regard to the foregoing, I find that the Complainant has not established “reasonable cause” so as to allow the cognisable period of the Act to be extended.

Complaint CA-00054313-001 – Complaint under the Redundancy Payments Acts

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the complainant has established the existence of a redundancy situation and the appeal succeeds.

I find that the complainant is entitled to a statutory redundancy payment based on the following:

Date employment commenced:  12th September 2018

Date Employment ceased:           14th November 2022

Gross Weekly wage:                      €577.50

The entitlement is contingent on the complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

Complaint CA-00054313-002 – Complaint under the Payment of Wages Act  

I find that this complaint is not well-founded.

Complaint CA-00054313-003 – Complaint under the Payment of Wages Ac

I find that this complaint is not well-founded.

Complaint CA-00054313-001 – Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €1,732.50, or the equivalent of three weeks’ remuneration, in compensation.

Redundancy, Lay-Off, Section 12, Counter Notice