ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047725
Parties:
| Complainant | Respondent |
Parties | Sepastian Kurpiers | Killybrackey Limited trading as Scalp Wood Nurserys |
Representatives |
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Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00057063-001 | 09/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00057063-002 | 09/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00057063-003 | 09/06/2023 |
Date of Adjudication Hearing: 23/11/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.
The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).
In addition to a claim for a redundancy payment, the Complainant has additionally referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular, the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973. Where the Adjudicator finds that the section was contravened by the Employer in relation to the Employee who presented the complaint, the Adjudication officer can direct that the employer concerned pay to the Employee compensation for any loss sustained by the Employee by reason of the contravention.
Section 4 imposes an obligation on the employer who seeks to terminate the contract of employment to give a minimum period of notice. The period of notice is to be calculated in accordance with the length of continuous service. This starts at thirteen weeks and goes up to fifteen years. The date of termination shall be taken to be the final date of the Notice period. Even where payment has been accepted in lieu of Notice the date of termination shall be deemed to be the date on which the notice would have expired.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing (unless IR). The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 9th of June 2023. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant outlined his evidence. The Complainant showed me a number of payslips from which I could glean certain evidence such as the Gross weekly wage. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant alleges that his employment ended abruptly on the 31st of December 2022. The Complainant was not given any Notice of the intention to close his workplace. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant. |
Summary of Respondent’s Case:
The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 25th of October 2023 - and posted to the correct registered address provided in the company search conducted by the Complainant. The Respondent company has never engaged with this process and its attitude to the claims brought is unknown. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the Complainant herein. There can be no doubt that the Complainant has been an Employee with the Respondent company since the 13th of November 2006. The Company owned and operated a busy plant nursery and garden centre close to Kilternan, in the County of Dublin. For his roughly sixteen years of employment the Complainant worked very closely with Mr. M who was a Director of the company. I understand that the said Director’s health might have deteriorated towards the end of 2022 which resulted in his departure from the site, and a sudden closing of the business. The Complainant says that he and his colleagues had worked through the Christmas period selling trees and other Christmas plants and decorations. However, on the 31st of December 2022 he, and two other members of staff, became aware that the company was closing. It is clear from the evidence provided by the Complainant that the Employer herein has ceased to carry out the work for the purposes of which this employee was employed (running the plant nursery). The Complainant was therefore made Redundant. I note that the company itself continues to be a viable entity, where activity has been noted in the Companies Registration Office as recently as August of 2023. Having worked for over fifteen years with the Respondent company, the Complainant should have been given 8 weeks’ notice of any decision to terminate his employment. This would have brought his date of termination to the 25th of February 2023. The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 applies. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00057063-001 – This complaint was withdrawn by the Complainant in the course of the hearing.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00057063-002 – I am satisfied that Complainant is entitled to an award of Statutory Redundancy based on the following facts: The employment started: 13th of November 2006 The employment ended: 25th of February 2023 Gross weekly wage : €615.00
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00057063-003 - There has been a contravention of the Act and I direct that that the employer pay to the employee compensation in the amount of €4,920.00.
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Dated: 5th June 2024.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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