Complainant

Respondent

Parties

David Tynan

Cribbin Family Butchers Limited (in liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

Noel Murphy Cork Operative Butchers / IWU

Edward Walsh Edward Walsh Corporate Services Limited

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-00056689-001

16/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056689-002

16/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056689-003

16/05/2023

It is common case that the Complainant was made redundant when the company ceased trading on 19 November 2022 and that no statutory notice was received by the Complainant.  The Complainant is seeking payment of  the statutory sum for the  additional period  from commencement of employment on 12 November 2007  to 15 January 2015 under the Redundancy Payments Act 1967 (“the 1967 Act”).

The Complainant submits that he did not receive his full annual leave entitlement under the Organisation of Working Time Act 1997 (“the 1997 Act”)

The Complainant is seeking  compensation in lieu of  eight weeks pay  as provided for under the Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”) .

CA-00056689-001: Redundancy Payment:

The Complainant gave evidence that he earned more than €600 per week and he was in continuous employment  from 12 November 2007. The Complainant accepted he was paid the equivalent statutory redundancy sum from the period 15 January 2015 to 19 November 2022.

CA-00056689-002: Annual Leave: The Complainant had originally sought compensation for the loss of 15 days annual leave but accepted that he had taken days in the cognisable period under the 1997 Act.

CA-00056689-003: Minimum Notice:

The Complainant gave evidence he received no notice under the 1973 Act and is seeking compensation in lieu of eight weeks’ pay.

The Respondent accepts that there was a genuine redundancy situation and that the statutory sum was paid to  the Complainant for the period   from 15 January 2015 to 19 November 2022.

The Respondent disputed the fact that the Complainant was due 15 days leave. Mr Walsh gave evidence that according to the records which were available, the Complainant was entitled only to 5.5 days unpaid annual leave.

The Respondent accepts that when the company ceased trading and went into liquidation, the Complainant received no statutory notice.

CA-00056689-001: Redundancy Payment:

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,

Based on the uncontested evidence of the Complainant I find that he was made redundant under Section 7 (2)(a). I allow the Complainants appeal and I award him statutory redundancy on the following basis 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.”

CA-00056689-002 Annual Leave:

Section 27 of the 1997 Act provides:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

There was tacit agreement at the hearing that the Complaint erred in calculating that he had   15 outstanding  leave. The Respondent gave convincing evidence, which was more satisfactory,  that the outstanding days which were not paid on cessation of employment was 5.5 days.   I find that the complaint was well founded, and I direct the Respondent to pay the Complainant a compensatory sum equivalent to 5.5 days’ pay.

CA-00056689-003: Minimum Notice:

Section 4 of the Minimum Notice and Terms of Employment Acts, 1973 to 2005 provides:-

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

“(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.”

The uncontested evidence in this case was that the Complainant was in employment for more than 15 years therefore he was entitled to eight weeks’ notice. I find that the complaint is well founded. 

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-00056689-001: 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: 12 November 2007

Date of Reckonable Service for Redundancy Payment Ceasing on: 15 January 2015 (the Complainant already having received the statutory sum for the period 15 January 2015 to 19 November 2022)

Gross Weekly Wage: €600 (in line with the cap under the Redundancy Payments Acts 1967-2012).

CA-00056689-002 Annual Leave:

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

I find under section 27 of the Organisation of Working Time 1997 that the complaint of not having received his full statutory annual leave payment  was well founded, and I direct the Respondent to pay the Complainant the compensatory sum of 5.5 days’ pay.

CA-00056689-003 Minimum Notice:

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

I find that the complaint under the Minimum Notice and Terms of Employment Act 1973 was well founded. I direct the Respondent to pay the Complainant eight weeks’ pay as compensation in lieu of notice. 

Redundancy Payments Act 1967, Minimum Notice and Terms of Employment Act 1973, Organisation of Working Time Act 1997.