ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00045712

Parties:

Complaints:

Date of Adjudication Hearing:  27/07/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant seeks statutory redundancy and minimum notice.

Summary of Complainant’s Case:

The Complainant was employed as a Retail Assistant from 21 November 2007 to 16 December 2022. Her hours of work varied, and records show her average pay was €332 per week in the last 13 weeks of employment.  The shop changed hands twice during her employment.  Her most recent employer was the Respondent who employed her on a written contract of employment.  Staff were notified on 6 December 2022 that the shop was closing, and the last day of employment was 16 December 2022.

Summary of Respondent’s Case:

The Respondent stated that he was asked to take over the business by the previous owners.  He said that he did not take over the business due to difficulties in getting information or licences in order to carry out legitimate trade.  He submitted documentation from his solicitor confirming that the business did not transfer to him.  He stated that he took over the business on a temporary basis while the paperwork was being finalised.  He provided staff with written contracts pending the transfer of undertakings coming through.  He contends that the claim for redundancy should be made against the owners of the business who are in liquidation.

Findings and Conclusions:

CA-00056255-001 – Redundancy Payments Act 1967

The Respondent agrees that there is a redundancy situation.

His argument is that the previous employer (in liquidation) should be held responsible for the redundancy payment as no transfer of undertakings occurred.  TUPE is designed to ensure that employees are not unfairly disadvantaged and that the tenure period accrued by the employee is acknowledged by the new employer.  In this case the observation of the continuous service of the employee was acknowledged by the Respondent to the employees. 

The applicable law

Section 7 of the Redundancy Payments Act 1967 provides for an employee’s right to redundancy payment as follows:

“7 – (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short term 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…

(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..

Section 2 of the Redundancy Payments Act 1967 (as amended) provides the definition of employer as:

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, … is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer.”

In this instant case, the evidence is that the Respondent furnished the Complainant with a contract of employment, paid her wages and arranged for the relevant statutory deductions from her wages, i.e. tax and PRSI.  I find that the Respondent was the employer of the Complainant and I find that the Complainant is entitled to a statutory redundancy payment.

CA-00056255-002 – Redundancy Payments Act 1967

This is a duplicate of CA-00056255-001

CA-00056255-003 – Minimum Notice and Terms of Employment Act 1973

The Complainant has been in continuous employment from 21 November 2007 to 16 December 2022 when she was made redundant.

The definition of employee in the Act is as follows:

“employee” means an individual who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or otherwise, and cognate expressions shall be construed accordingly”.

In accordance with Section 4 (2) (e) of the Act, the Complainant is entitled to eight weeks notice.

I find the complaint to be well founded.  As the Complainant was given one week’s notice, I require the Respondent to pay to the Complainant the sum of €2,324.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to compensation for any loss sustained by the employee by reason of the default of the employer.

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.

CA-00056255-001 – Redundancy Payments Act 1967

I have decided that the Complainant is entitled to redundancy payment pursuant to the Redundancy Payments Act 1967 (as amended) on the following basis:

Start Date: 21 November 2007

Notification Date: 06 December 2022

Termination Date: 16 December 2022

Hours Worked Per Week: 22 Hours

Weekly Gross Wage: €332

This payment is subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00056255-001 – Redundancy Payments Act 1967

This is a duplicate of CA-00056255-001

CA-00056255-003 - Minimum Notice and Terms of Employment Act 1973

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €2,324.

Dated:   15/9/23

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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