ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051230

Parties:

Complaint:

Date of Adjudication Hearing:  27/06/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 39 of the Redundancy Payments Acts 1967-2022 to the Workplace Relations Commission (hereinafter ‘WRC’) on 12th April 2024.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was listed for remote hearing on 27th June 2024.  The Complainant attended with a Representative from South Leinster Citizens Information Service who had also very helpfully provided written submissions and vouching documentation.  There was no appearance on behalf of the Respondent.  Before proceeding, I confirmed that the named Owner/Director had not made any application for an adjournment, indicated any difficulty attending or otherwise engaged with the WRC.  The Respondent had been properly notified of the date, venue and time for the hearing at its current registered address.  I noted that although correspondence sent to that address had been returned to the WRC marked ‘gone away’, the Respondent had been notified of the hearing date by other means including by email.  I also confirmed that the CRO had not been updated with the details of an official liquidator and the Respondent’s status was ‘trading normally’.  Subsequent to the hearing, the Owner/Director has not made any contact the WRC to provide an explanation for his non-attendance at the hearing. 

Background:

The Respondent had ceased trading and had failed to discharge the Complainant’s statutory redundancy lump sum payment.  By way of appeal, the Complainant sought a decision from the WRC confirming his entitlement to same for the purposes of seeking payment from the Redundancy Payment Scheme operated by the Department of Social Protection.  There was no attendance by or on behalf of the Respondent at the hearing and consequently this complaint was unopposed.

Summary of Complainant’s Case:

The Complainant gave evidence under oath confirming that he had commenced employment with the Respondent as a Manager of its Store in Birr, Co. Offaly on 19th October 2020.  He worked 27 hours per week in respect of which he earned €283 gross.  He had never received a contract or written terms and conditions of employment.  He had no breaks in service within the last three-year period of employment.  He said that business had been good until a larger store selling similar goods had moved into the town.  On Friday 26th January 2024, the Complainant received a message from the Owner/Director, asking him to attend at the Store the next day, being 27th January 2024.  There, he informed him that he was being made redundant with immediate effect.  The Store was visibly empty and thereafter ceased trading and was shuttered-up.  The Owner/Director advised the Complainant to seek his statutory redundancy payment from the Department of Social Protection.  

The Complainant sought his statutory termination payments from the Owner/Director and eventually received payment in lieu of his outstanding annual leave and minimum notice period but not his redundancy lump sum payment.  The Owner/Director did however meet with him on 21st February 2024 and signed his RP77 Form stating: “I do not have money to pay you redundancy”.  Thereafter, he disengaged from any further contact with the Complainant.  The Complainant sought advice from the South Leinster Citizens Information Service who contacted the Department of Social Protection on his behalf.  The Redundancy and Insolvency Payments Section emailed back as follows: “If your employer will not engage with you, you may wish to make a complaint against them to Workplace Relations Commission…  If the WRC make an award in your favour and your employer will not pay the award, you can submit a copy of award to this office quoting your PPS no.  An RP50 form will then be forwarded to you for completion.  A decision will then be made by the office as to whether payment of the award can be made under the Redundancy Payment Scheme.”  Overall, it was submitted on behalf of the Complainant that the Respondent was in breach of the Redundancy Payments Acts 1967-2022 by way of failing to pay the Complainant his redundancy entitlement.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above.  The named Owner/Director has not engaged with the WRC or submitted any submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings & Conclusions:

The Redundancy Payments Acts 1967-2022 and Regulations made thereunder provide that in order to qualify for a statutory redundancy payment, an employee must (1) have at least two years’ continuous service, (2) be in employment which is insurable under the Social Welfare Acts, (3) be over the age of 16 and (4) have been made redundant as a result of a genuine redundancy situation.  An employee is entitled to two weeks’ gross pay for each year of service pro rata plus one week up to a ceiling of €600 with breaks in service within the past three years disregarded.  In particular, the relevant portion of Section 7 of the Redundancy Payments Act 1967 provides 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…”

Section 19 of the same Act provides for the payment of a lump sum by the employer as follows:

“19(1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or where by virtue of Section 12 an employee becomes entitled to redundancy payment, his employer shall pay to him an amount which is referred to in this Act as the lump sum.

(2) Schedule 3 shall apply in relation to the lump sum.”

S.I. No. 695/2004 - Redundancy Payments (Lump Sum) Regulations 2004 sets out the current limits.

Based upon the Complainant’s credible and unrefuted evidence as confirmed with vouching documentation, I find on the balance of probabilities that he meets all the requisite criteria for redundancy as outlined above.  I am satisfied that he was given notice of termination of his employment on 27th January 2024 and allowing for his entitlement to a statutory minimum notice period of two weeks, his employment terminated on 10th February 2024.  I am further satisfied that the Respondent has not paid the Complainant his statutory redundancy lump sum to date. 

Decision:

Section 39 of the Redundancy Payments Act 1967 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions.  Based upon the aforesaid reasoning, I allow this appeal and find that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967-2022 in accordance with the following particulars:

Gross Weekly Pay:  €283

Date of Commencement of Employment:  19th October 2020

Date of Notice:  27th January 2020

Date of Termination of Employment:  10th February 2024

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts for the relevant period, being a matter for the Department of Social Protection.

Dated:   29th of July 2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Redundancy Acts 1967-2022 - Non-payment of statutory redundancy lump sum