RPD2417

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039818 (CA-00051143-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 14 December 2024 in accordance with the Redundancy Payments Acts 1967 to 2014. This appeal was heard in conjunction with  ADJ-00039818 (CA-00051143-001).

 A Labour Court hearing took place on 28 March 2024.

 The following is the Decision of the Court:

DECISION:

This is an appeal by Michael Joyce against the decision of an Adjudication Officer (Number: - ADJ-00039818, dated 3 November 2023) made under the Redundancy Payments Act 1967 (‘the Act’) against his former employer Frank McHale t/a Stacks Bar. The complaint under the Act was submitted to the Workplace Relations Commission on 10 June 2022. The Adjudication Officer found that the complaint was out of time and so statute barred. The parties are referred to in this Determination below as they were at first instance. Hence, Michael Joyce is referred to as “the Complainant” and Frank McHale trading as Stacks Bar is referred to as “the Respondent”. Michael Joyce submitted an appeal to the Labour Court on 14 December 2023.  A Labour Court hearing was held in Galway on 28 March 2024. The Respondent did not attend the hearing. The Respondent notified the Court in advance of the hearing that he would not be in attendance. No application for a postponement of the hearing date was sought. At the outset of the hearing the Complainant’s representative confirmed that the correct respondent was impleaded in the appeal.

Summary of the Complainant’s position 

The Complainant’s representative submits that the Complainant is entitled to a statutory redundancy payment.  The Complainant commenced employment with the Respondent on 1 January 2007. In March 2020, the Complainant was laid off due to the Covid-19 pandemic. He returned to work when the social welfare pandemic unemployment payment (PUP) ceased.  He was subsequently made redundant when the bar closed. The Complainant did not receive any notice when made redundant. The Complainant’s representative submitted that the Adjudication Officer erred in finding that the complaint under the Act was out of time as the Complainant returned to work after his period of layoff. The complaint under the Act was submitted to the Workplace Relations Commission on 10 June 2022.  The Complainant gave evidence under oath to the Court which can be summarised as follows: The Complainant commenced employment on the full-time basis with the Respondent in 2007. He did not receive a written statement of employment or any other documents about his employment. He was placed on lay off from work during the COVID-19 pandemic in March 2020. He remained on layoff until March 2022. During that time, he received the Social Welfare Pandemic Unemployment Payment (PUP).  In March 2022, the Respondent asked him to return to work in the bar. The pub premises was sold by the bank during the layoff period and the Respondent leased pub back from the new owner. The Complainant returned to work for the Respondent for four or five weeks and worked 24 to 30 hours each week.  The Respondent advised him that he was closing the pub. The Respondent told him to ask the new owner who had purchased the premises about a redundancy payment, although he had never worked for the owner. After the pub closed the building was turned into apartments.

The Relevant Law

Section 7 of the Redundancy Payment Act, 1967, sets out a general right to a redundancy payment 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,

Deliberation and Findings

The appeal before the Court concerns the Complainant’s entitlement to a statutory redundancy payment in accordance with Section 19 of the Redundancy Payments Act 1967. The key facts asserted by the Complainant are that he commenced employment at the Respondent’s bar on 1 January 2007. He was laid off from work due to the Covid-19 pandemic from 13 March 2020 until 24 March 2022. The Complainant provided a statement of the Social Welfare Pandemic Unemployment Payment (PUP) payments that he received in the period from 13 March 2020 to 24 March 2022.  The Complainant’s evidence was that he returned to work in the bar for a four- or five-week period after 24 March 2022. The bar subsequently closed, and his position was made redundant.  The Complainant’s testimony was not disputed, as the Respondent did not attend the hearing. In the absence of any evidence from the Respondent, the Court accepts the uncontested sworn evidence of the Complainant.  Having regard to the facts as set out by the Complainant, the Court finds that the Complainant has satisfied the requirements as set out in 7(1)(a) of the Act, insofar that he was employed for the requisite period to accrue an entitlement to a redundancy payment where his employment is terminated by reason of redundancy. The Court finds that the requirements as set out in Section 7(2)(a) of the Act are satisfied in so far as the Respondent employer ceased to carry on the business for the purposes of which the employee was employed. The Complainant said that he worked for a four- or five-week period after social welfare payment ceased but was unable recall the precise date that his employment was terminated. Having regard to the fact that his Social Welfare Pandemic Unemployment Payment (PUP) payments ceased on 24 March 2022, the Court finds that his employment was terminated on 21 April 2022, which is four weeks after he returned to work after his period of lay-off. 

Decision

The Court finds from the undisputed facts of the case before the Court that the Complainant’s position was made redundant within the meaning of the Act at Section 7(2)(a). Accordingly, and for the reasons set out above, the Court finds that the Complainant is entitled to a redundancy payment in line with the Redundancy Payments Acts in respect of his service from 1 January 2007 to 21 April 2022. The Complainant’s rate of pay was €600 per week and that figure should be used when calculating the redundancy amount in accordance with Schedule 3 of the Redundancy Act 1967. The Court determines that the Complainant’s claim is well founded. The Adjudicator’s decision is set aside. The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
2nd July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.