Complainant

Respondent

Parties

Veronica Marbach

Killybrackey Ltd Scalp Wood Nurseries

Complainant

Respondent

 Parties

Veronica Marbach

Killybrackey Ltd Scalp Wood Nurseries

Representatives

  self

 No show

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-00061824-001

27/02/2024

The Respondent Company operated a garden centre and the garden centre ceased trading in mid-December 2022 when the owner became ill.

The Company Registration Officer details for the Respondent Company are:

Reg. Number 412949

Reg. Name KILLYBRACKEY LIMITED

Type LTD - Private Company Limited by Shares

Status Normal

Effective Date 21/12/2005

Registered on 21/12/2005

Next Annual Return 30/09/2023

Reg. Address SCALPWOOD, DUBLIN 18, KILTERNAN, DUBLIN, IRELAND

The Complainant worked as a horticulturist and sales assistant with the Respondent.

She commenced employment with the Company in December 2005 when her work was transferred over to the Respondent. She previously worked for a business Scalpwood Nurseries that transferred to the Company. By reason of redundancy her employment ended on the 5th of August 2023 after serving 1 weeks’ notice on the Company on the 28th of August 2023. The Complaint was lodged with the Commission on the 27th of February 2024 within the 12-month statutory timeframe.

The Complainant was placed on lay-off on or about mid -December 2022. Arising from numerous requests to clarify her employment position without any success on the 28th of August 2023 the Complainant wrote to the Company Secretary informing them that she wished to be made redundant.

Her gross weekly pay was €396.

The Complainant was placed on layoff arising from the owner of the business becoming seriously ill. After several months of layoff, the Complainant requested to be made redundant.

Section 12 of the Redundancy Payments Act 1967 (as amended) (“the RPA”) provides inter alia that where an employee is kept on lay off or short time for four or more consecutive weeks by his/her employer he/she may claim a redundancy payment from the employer provided he/she issues a notice in writing to the employer of his/her intention in this regard, which the Claimant in this case did by letter dated 29th of March 2023.

 Section 13 of the RPA provides that an employee will not be entitled to a redundancy payment in such circumstances if, on the date of service of the employee’s notice of intention to claim this, the employer is in a position to provide the employee with work for at least 13 weeks commencing no later than four weeks from the date of the employee’s said notice, provided the employer issues a counter notice that it will contest any liability to pay the employee a redundancy payment within seven days of the date of the employee’s said notice, in default of which the employee will be entitled to a redundancy payment.

 Since the Respondent herein issued no counter-notice pursuant to section 13 of the RPA, either within seven days of the Claimant’s notice of intention to claim a redundancy payment or at all, it follows that the Claimant is entitled to a redundancy payment from the Respondent pursuant to sections 12 and 19 of the RPA.

The owner of the business is deceased, and the Business ceased trading in December 2022.

CA-00061824-001 Statutory Redundancy Entitlement:

Section 12 of the Redundancy Payment Act 1967 as amended states:

Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) ( a ) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The employee has met the conditions pursuant to section 12 and has notified the employer of her intention to claim redundancy subject to section 12(2) and the requirement to provide 1 weeks’ notice to the employer.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.      Start date 1st February 2003 as the Complainant first worked at Scalpwood nurseries from February 2003 and that economic activity transferred to the Respondent in December 2005 and she continued with the Respondent up to December 2022.

2.      Contractual termination date (allowing for 1 weeks’ notice to employer) 5th of September 2023.

3.      Date of lay-off 21st of December 2022

4.      The RP9 Form and equivalent notice looking for redundancy was served on the employer on the 28th of August 2023 and allowing for the required 1 week statutory notice the termination date was the 5th of September 2023.

5.      Gross weekly wage €396

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

8. During, and only during, the 3-year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service —

 (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service.

Reckonable service runs from the date of commencement of employment on 1st February 2003 to the time of lay-off on 21st of December 2022

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

I determine that the Complainant is entitled to statutory redundancy based on the facts as detailed.

I am satisfied that the Complainant is entitled to statutory redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.      Start date 1st February 2003 as the Complainant first worked at Scalpwood nurseries from February 2003 and that economic activity transferred to the Respondent in December 2005 and she continued with the Respondent up to December 2022.

2.      Contractual termination date (allowing for 1 weeks’ notice to employer) 5th of April 2023.

3.      Date of lay-off 21st of December 2022.

4.      The RP9 Form and equivalent notice looking for redundancy was served on the employer on the 28th August 2023 and allowing for the required 1 week statutory notice the termination date was the 5th of September 2023

5.      Gross weekly wage €396

The Company was on notice of the date, time and place of the hearing and failed to attend.

Redundancy entitlement.