Complainant

Respondent

Parties

Dejana  Gagula

Les Byrne T/A El Vino

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-00059425-001

16/10/2023

The Complainant was employed as a restaurant manager by the Respondent restaurant, until it closed down. She was originally employed full-time from 2nd March 2020, but moved to part-time work after returning from maternity leave, from August 1st, 2022, until the termination of the contract on 27th August 2023. She was regularly expected to do overtime (and did overtime) above her standard contracted hours.

The Complainant gave evidence that the redundancy was not processed by her employer in a proper way. The business closed and she heard nothing from the Respondent.

The Complainant gave evidence that her employment commenced in 02/03/2020 and that she worked full-time, that she went on maternity leave at the end of November 2021 and then returned to work on 1/8/2022 on a part-time basis following maternity leave, and that remained the situation until the restaurant closed thirteen (13) months later. Her rate of pay was €14 per hour. The Complainant exhibited payslips as part of her complaint.

The Respondent did not appear, at the hearing, and was not represented.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states 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,

Section 4(1) of the 1967 Act states: “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”   

Based on the uncontested evidence of the Complainant, I find that she made redundant under Section 7(2)(a). I allow the Complainant’s appeal and I award her statutory redundancy on the following basis.

As per Schedule 3 of the Redundancy Payments Act 1997, “normal weekly remuneration” is calculated on the following basis:

“13. For the purposes of this Schedule, in the case of an employee who is paid wholly by an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration does not vary in relation to the amount of work done by him, his normal weekly remuneration shall be taken to be his earnings (including any regular bonus or allowance which does not vary in relation to the amount of work done) for his normal weekly working hours as at the date on which he was declared redundant, together with, in the case of an employee who is expected to work overtime regularly, his average weekly overtime earnings as determined in accordance with paragraph 14.

14. For the purpose of paragraph 13 the average weekly overtime earnings shall be determined by ascertaining the total amount of overtime earnings of the employee concerned in the period of 26 weeks which ended 13 weeks before the date on which the employee was declared redundant and dividing that amount by 26.”

I allow the Complainant’s appeal and, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, she is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis:-

Date of Commencement: 2/3/2020

Date of Reckonable Service for Redundancy Payment Ceasing on: 27/08/2023

Gross Weekly Wage: €330.27 [€280 weekly remuneration + average weekly overtime of €50.27, calculated as per Schedule 3]

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the respective period of employment. 

Redundancy Payments Act 1967