Complainant

Respondent

Parties

Louis  Wong

Michie Sushi Limited trading as Michie Sushi

Representatives

Terry Gorry of Terry Gorry & Co. Solicitors

 No Appearance

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-00061056-001

17/01/2024

The Complainant commenced employment with the Respondent as a Chef on the 1st September 2014 and was paid €692.31 per week. The Complainant’s employment ended by reason of redundancy on the 26th November 2023 however he did not receive his statutory redundancy entitlement.  

The Complainant stated in evidence that on the 28th October 2023 he was informed by a Director of the Respondent that the restaurant where he was employed was closing down on the 26th November 2023. He was given four weeks’ notice and informed that his employment would terminate on the 26th November 2023. The Respondent failed to pay the Complainant his statutory redundancy entitlement despite the Complainant and his solicitor entering into correspondence with the Respondent.

On the 20th March 2024 the Respondent emailed the WRC indicating that the Respondent had ceased trading and that “there was no more money left in the business”. The Respondent did not attend the scheduled hearing of this complaint. Notice of the hearing arrangements was sent to the Respondent on the 29th February 2024. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent.

The Complainant provided evidence of his redundancy, evidence of his calculated entitlement and evidence in support of his contention that the statutory redundancy payment was never made to him. He submitted a letter dated the 28th October 2023 wherein he was advised that due to a drop in sales and a downturn in the economy the Respondent was closing the restaurant where the Complainant was employed on the 26th November 2023. The Complainant was given four weeks notices and his employment terminated by reason of redundancy on the 26th November 2023.

This complaint is for a statutory lump sum payment under section 39 of the Redundancy Payments Acts 1967 (as amended).  The Acts, related legislation and Regulations made thereunder require that in order to qualify for a statutory redundancy payment, an employee must -

(1)    have at least 2 years’ continuous service;

(2)    be in employment which is insurable under the Social Welfare Acts;

(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.

Section 7(2) of the Redundancy Payments Act 1967 (as amended) states:

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…

Having heard the evidence, I am satisfied the Complainant’s situation falls to be considered under 7(2)(a) above.  I am satisfied that the Complainant is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967 (as amended).  I am satisfied that the Respondent has not paid any monies to the Complainant in respect of his statutory redundancy entitlement as at the date of hearing. The calculation of gross weekly pay is subject to a ceiling of €600.00.  The calculation of the lump sum is a matter for the relevant department.

Having considered all the written and oral evidence presented in relation to this matter my decision is to allow the Complainant’s appeal against the failure of his employer to pay a redundancy.  I decide that the within complaint is well-founded and I decide that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payment Act 1967 (as amended) based on the following criteria:

Date of Commencement: 1st September 2014

Date of Notice of Termination: 28th October 2023

Date Employment Ended: 26th November 2023

Gross Weekly Wage: €692.31. This figure is capped at the maximum figure of €600 as his weekly wage exceeded that sum.

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

Redundancy Payments Act – statutory redundancy unpaid – appeal allowed