CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision ADJ-00050729 issued on 26/08/2024 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050729
Parties:
| Complainant | Respondent |
Parties | Douglas Fabiano Perfeto Oliveira Silva | Burnt Pizza Ltd. |
Representatives | Self-represented | No appearance
[A Liquidator has been appointed] |
Complaint:
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-00062190-001 | 11/03/2024 |
Date of Adjudication Hearing: 12/06/2024
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Procedure:
In accordance Section 39 of the Redundancy Payments Acts 1967 (as amended) following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. All evidence was given under oath or affirmation and was subject to cross-examination. A Portuguese language interpreter was in attendance.
Background:
The Complainant was employed as a pizza chef by the Respondent restaurant, until it closed down. He worked full-time (39 hours per week) from 29/03/2019 until 24/02/2024. The restaurant closed down the next day (25/02/2024). |
Summary of Complainant’s Case:
The Complainant took the affirmation, as did the Portuguese language interpreter. The Complainant gave evidence on his own behalf. He gave evidence that the redundancy was not processed by his employer in a proper way. The business closed and he heard nothing from the Respondent. The Complainant gave evidence that his employment commenced on 29/03/2019 and that he worked full-time (39 hours per week) until he was given notice of the termination of his employment on 24/02/2024. The restaurant closed down on 25/02/2024. His normal weekly remuneration (gross) was €576 per week. The Complainant exhibited payslips as part of his complaint. He explained that a liquidator had since been appointed, and that he expected (through the liquidator, and the insolvency fund) to receive his full redundancy payment entitlement, that that process was currently in train and would take 10-12 weeks to process, but that as his case had come up for adjudication hearing in the meantime, he still wished to proceed with the hearing and receive a decision from the WRC, under the Redundancy Payments Acts (as amended), as he had been advised to do so. |
Summary of Respondent’s Case:
No appearance was entered by or on behalf of the Respondent. |
Findings and Conclusions:
The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states 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-time 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, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date. (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, 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, Section 4(1) of the 1967 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.” Based on the uncontested evidence of the Complainant, I find that he was made redundant under Section 7(2)(a). I allow the Complainant’s appeal and I award his statutory redundancy on the following basis. As per Schedule 3 of the Redundancy Payments Act 1997, “normal weekly remuneration” is calculated on the following basis: “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) 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 expected to work overtime regularly, his average weekly overtime earnings as determined in accordance with paragraph 14. 14. For the purpose of paragraph 13 the average weekly overtime earnings shall be determined by ascertaining the total amount of overtime earnings of the employee concerned in the period of 26 weeks which ended 13 weeks before the date on which the employee was declared redundant and dividing that amount by 26.” |
Decision:
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.
I allow the Complainant’s appeal and, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, he is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis:-
Date of Commencement: 29/03/2019
Date of Reckonable Service for Redundancy Payment Ceasing on: 24/02/2024
Gross Weekly Wage: €576 |
Dated: 26th August 2024
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Key Words:
Redundancy Payment Acts 1967 (as amended) |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050729
Parties:
| Complainant | Respondent |
Parties | Douglas Fabiano Perfeto Oliveira Silva | Burnt Pizza Ltd. |
Representatives | Self-represented | No appearance
[Gina Heffernan has been appointed as Liquidator] |
Complaint:
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-00062190-001 | 11/03/2024 |
Date of Adjudication Hearing: 12/06/2024
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Procedure:
In accordance Section 39 of the Redundancy Payments Acts 1967 (as amended) following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. All evidence was given under oath or affirmation and was subject to cross-examination. A Portuguese language interpreter was in attendance.
Background:
The Complainant was employed as a pizza chef by the Respondent restaurant, until it closed down. He worked full-time (39 hours per week) from 29/03/2019 until 24/02/2024. The restaurant closed down the next day (25/02/2024). |
Summary of Complainant’s Case:
The Complainant took the affirmation, as did the Portuguese language interpreter. The Complainant gave evidence on his own behalf. He gave evidence that the redundancy was not processed by his employer in a proper way. The business closed and he heard nothing from the Respondent. The Complainant gave evidence that his employment commenced on 29/03/2019 and that he worked full-time (39 hours per week) until he was given notice of the termination of his employment on 24/02/2024. The restaurant closed down on 25/02/2024. His normal weekly remuneration (gross) was €576 per week. The Complainant exhibited payslips as part of his complaint. He explained that a liquidator had since been appointed, and that he expected (through the liquidator, and the insolvency fund) to receive his full redundancy payment entitlement, that that process was currently in train and would take 10-12 weeks to process, but that as his case had come up for adjudication hearing in the meantime, he still wished to proceed with the hearing and receive a decision from the WRC, under the Redundancy Payments Acts (as amended), as he had been advised to do so. |
Summary of Respondent’s Case:
No appearance was entered by or on behalf of the Respondent. |
Findings and Conclusions:
The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states 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-time 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, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date. (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, 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, Section 4(1) of the 1967 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.” Based on the uncontested evidence of the Complainant, I find that he was made redundant under Section 7(2)(a). I allow the Complainant’s appeal and I award his statutory redundancy on the following basis. As per Schedule 3 of the Redundancy Payments Act 1997, “normal weekly remuneration” is calculated on the following basis: “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) 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 expected to work overtime regularly, his average weekly overtime earnings as determined in accordance with paragraph 14. 14. For the purpose of paragraph 13 the average weekly overtime earnings shall be determined by ascertaining the total amount of overtime earnings of the employee concerned in the period of 26 weeks which ended 13 weeks before the date on which the employee was declared redundant and dividing that amount by 26.” |
Decision:
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.
I allow the Complainant’s appeal and, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, he is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis:-
Date of Commencement: 29/03/2019
Date of Reckonable Service for Redundancy Payment Ceasing on: 24/02/2024
Gross Weekly Wage: €576 |
Dated: 26th August 2024
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Key Words:
Redundancy Payment Acts 1967 (as amended) |