Complainant

Respondent

Parties

Michael  Mc Kenna

Patrick Gilsenan

Representatives

Geraldine Duffy, Monaghan Citizens Information Centre

 N/A

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-00060532-001

14/12/2023

In October 2010, the Complainant commenced work as a Driver for the Respondent. The Complainant submitted that he was dismissed by reason of redundancy in July 2023. The Complainant worked approximately 13 hours per week, earning approximately €154.46 gross per week. The Complainant submitted his Complaint Form to the WRC on 14 December 2023. In his Complaint Form, the Complainant submitted that he was due a statutory redundancy payment of €4,102.46.

The Complainant provided oral submissions.

The Complainant submitted that he was employed as a Driver by the Respondent from 2010 until 2023. He submitted that there were approximately 10 or 12 other drivers working for the Respondent. He submitted that he usually worked a total of 13 hours per week – on a Saturday evening and a Sunday evening from 6pm until 12pm. He submitted that the Respondent provided him with a car. He submitted that he could not substitute himself with another driver and that he alone had to drive the car. He further submitted that he received paid annual leave. The Complainant submitted that he was paid approximately €154.46 gross per week by way of bank transfer and that he received payslips.

The Complainant submitted that he was informed on or around 4 July 2023 that he was being made redundant and that on 31 July 2023, he was notified that the business was closing. He submitted that he wrote to the Respondent regarding his redundancy payment entitlement in October 2023 but received no response. The Complainant submitted that he did not receive the COVID-19 Pandemic Unemployment Payment.

The Respondent provided oral submissions.

The Respondent submitted that he was the correct respondent. He submitted that he was a sole trader and that the Complainant was an employee. He submitted that the company had traded as “Call-A-Car” some years ago.  The Respondent submitted that he was in agreement with the Complainant’s evidence. The Respondent submitted that he had employed 15 employees. He submitted that he had also been working seven days a week and that this was unsustainable. He further submitted that he closed his business on 31 July 2023 after 22 years of work. He submitted that he received the Complainant’s correspondence in October 2023 but did not respond as he did not have the money.

The Law:

The Complainant seeks a statutory redundancy payment under section 39 of the Redundancy Payments Acts 1967, as revised (the “RPA”). In order to qualify, an employee must: (1) have at least two years’ continuous service; (2) be in employment which is insurable under the Social Welfare Acts – this is a matter for the Department of Social Protection; (3) be over the age of 16; (4) have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and (5) not have received a lump sum payment. Periods of lay-off are excluded from reckonable service.

Section 7 of the RPA sets out five specific circumstances in which an employee may be entitled to a redundancy payment, including:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose 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”.

Schedule 3 of the RPA sets out what constitutes “normal weekly remuneration”:

“13. For the purposes of this Schedule, in the case of an employee who is paid wholly by an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration does not vary in relation to the amount of work done by him, his normal weekly remuneration shall be taken to be his earnings (including any regular bonus or allowance which does not vary in relation to the amount of work done and any payment in kind) for his normal weekly working hours as at the date on which he was declared redundant, together with, in the case of an employee who is normally expected to work overtime, his average weekly overtime earnings as determined in accordance with paragraph 14.”

Findings and Conclusion:

As the Respondent ceased to carry on the business for the purpose of which the Complainant was employed by him, the Complainant’s job became redundant. As the Complainant has completed more than two years of service; is over the age of 16; was made redundant as a result of a genuine redundancy situation; and did not receive any lump sum payment, I am satisfied that his complaint is well founded.

The Complainant is entitled to a redundancy payment based on the following facts established in evidence at the Hearing and confirmed in the documentation provided:

·             Date of commencement of employment: 22 October 2010.

·             Date of end of employment: 30 July 2023.

·             Gross weekly pay: €154.46.

Any award made under the RPA is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 – 1966. The calculation of the lump sum is a matter for the relevant Department.

For the reasons outlined above, the complaint is well founded.

The relevant criteria are:

·             Date of commencement of employment: 22 October 2010.

·             Date of end of employment: 30 July 2023.

·             Gross weekly pay: €154.46.

Any award made under the Redundancy Payments Acts 1967 as revised, is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 – 1966. The calculation of the lump sum is a matter for the relevant Department.

Redundancy Payments Act 1967.