Complainant

Respondent

Parties

Barbara  Hession

Pearl Street Entreprises T/A Mmp Living

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

No Appearance

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-00059291-001

09/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act

CA-00059291-002

09/10/2023

The Complainant commenced employment with the Respondent on 12th August 2016. At all relevant times the Complainant was engaged as an “office worker”. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €798.08. The Complainant’s employment was terminated by way of redundancy on 30th June 2023.

On 9th October 2023, the Complainant referred the present complaints to the Commission. Herein, she alleged that the Respondent had failed to pay her statutory redundancy and failed to compensate her for outstanding annual leave on the termination of her employment. No responding submission was received in relation to these allegations.

A hearing in relation to this matter was convened for, and finalised on, 5th March 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

The Complainant attended and gave evidence in support of her own complaints. In advance of the hearing, a representative of the Commission spoke with a member of management of the Respondent. During this call, this person advised that they were aware of the hearing but was unable to attend due to personal issues. As no adjournment application was received in respect of the same, the matter proceeded as scheduled and in the absence of the Respondent or any representative on their behalf.

On the complaint form as received, the Complainant alleged that she did not receive compensation for outstanding holiday pay on the termination of her employment. While this allegation clearly and unambiguously relates to a complaint under the Organisation of Working Time Act, the Complainant ticked the box indicating that the matter should be determined under the Redundancy Payments Act. In circumstances whereby the nature of the complaint referred was clear, I proceeded to hear the complaint under the Organsation of Working Time Act, and the relevant reference number listed above has been amended accordingly. In so doing, I am guided by the matter of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. Here, McGovernJ. held that,

“I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint…remains the same.”

In circumstances whereby the nature of the complaint was set out on the complaint form, and that the Respondent was put on notice of the same, I have amended the complaint form as outlined above.

In evidence, the Complainant submitted that she received an email on 30th June 2023, advising that the Respondent company intended to cease operations that day. This was the Complainant’s final day of employment, with the business remaining closed from the following Monday onwards. The Complainant advised that she sought a payment for her statutory redundancy payment, and her outstanding annual leave entitlement, but receive no substantive response. In evidence the Complainant submitted that at the time of her redundancy she had accrued 23 days of annual leave.

There was no appearance by or on behalf of the Respondent at the hearing as scheduled.

Having reviewed the file, it is apparent that the Respondent was no notice of the time, date and venue of the hearing. In such circumstances, and in the absence of any adjournment application on the part of the Respondent, the matter proceeded in their absence, and based on the Complainant’s evidence only.

Section 7(2)a of the Redundancy Payments Acts lists the following situation as a valid ground for redundancy;

“…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”.

This section clearly describes what has occurred in this instance- the Complainant’s employer ceased to carry on business, effectively making her role redundant. Having regard to the foregoing, and the wording of the Redundancy Payments Acts, I allow the Complainant’s appeal.

CA-00059291-001 Complaint under the Redundancy Payments Acts

I find in favour of the Complainant and allow the Complainant’s appeal.

In the circumstances the Complainant is entitled to a statutory redundancy payment based on the following information.

Date of Commencement:              12th August 2016

Date of Termination:                     30th June 2023

Average Weekly Wage:                 €798.08

CA-00059291-002 Complaint under the Organisation of Working Time Act

In evidence, the Complainant stated that she did not receive payment for outstanding annual leave on the termination of her employment.

In circumstances whereby the Respondent did not produce any evidence to rebut the Complainant’s allegations, I find that this complaint is well-founded and the application succeeds.

Regarding redress, the Complainant should receive payment of €3,671.17 in respect of the outstanding annual leave, and a further payment of €500 in compensation. For the avoidance of doubt, the entire award under this complaint is €4,171.17.

Redundancy, Complaint form, Organisation of Working Time Act