Complainant

Respondent

Parties

Tracy  Watson

Treasure Chest Limited Cro

Representatives

Andrea Cleere SIPTU

Dermot Duignan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00059531-001

20/10/2023

The Complainant commenced employment with the Respondent in 2004 as a shop assistant. The date her employment is not agreed between the parties.  The shop/company ceased trading in September 2023. The Complainant is seeking a redundancy payment.

The Complainant submits that she was employed by the Respondent as a Shop Assistant from 31May 2004.  She submits that while she was on sick leave she discovered that the Respondent company was closing its business on 29 September 2023. When she contacted the Respondent’s office, she was advised by a member of staff that she was no longer an employee. When the Complainant contacted Revenue, she found out that her employment had ceased on 21 October 2022; she had never been made aware by the Respondent that her employment had ended.  The Complainant is seeking redundancy from her employer. The Complainant has not applied to the Department of Social Protection for her redundancy payment. 

The Complainant submits that when Covid struck the shop closed and staff were placed on PUP. The Complainant was out from March 2020 until 2 August 2021, when she returned to work.  She worked until 7 July 2022.  On that date she contacted the Respondent and told her she was unable to attend work due to an illness (she was certified for two weeks).  She submitted sick certs to the Dept of Social Protection, but she did not copy the Respondent with certs, as was the practice.

In October 2022, the Complainant, who was still out sick, contacted the Respondent regarding her applying for a Disability Allowance, that she might be able work 18 hours per week and still receive Social Welfare benefits.

In December 2022, the Complainant submits that she was contacted by the Respondent and asked whether she was able to return to work.  The Complainant said she was still on sick leave.

The Complainant heard about the sale of the business in September 2023, and she contacted the Respondent.  She was told that redundancy would not apply in her case as she had been taken off the books.  This came as a shock to the Complainant as she believed she was still a member of staff.

The Complainant gave evidence on Oath at the hearing.

The Complainant stated that she had been out on PUP during the Covid pandemic. In June 2020 the shop re-opened but she did not return to work then.  The shop closed and re-opened again in June 2021, again she did not return to work. In July 2021, she was contacted by the Respondent and asked by her to stay on the PUP, because the shop was very quiet.   At the end of July 2021, she was contacted by the Respondent and asked to return to work on a four-day week basis. 

In July 2022, the Complainant went out sick from work.  She sent certs to the Respondent, which she continued to do “to this day”.  In October 2022, the Complainant rang the Respondent to find out the date on which she had gone out sick, as she wanted to apply for a Disability Allowance. 

In early December 2022, the Respondent contacted the Complainant and asked her if she could return to work. The Complainant said she would have loved to return but she was still out sick.   She heard nothing from the Respondent thereafter until she saw in the media that the shop was closing, and she rang the Respondent.  She was told by Marie O’Donoghue (witness for the Respondent), that she “was off the books”.

In response to it being put to her that the Respondent’s case is that her service was broken in May 2021, the Complainant stated that she was never told anything, nor was she informed in writing.  When asked if she was put on emergency tax in August 2021, as a new starter, the Complainant stated that she could not remember and that she was never given pay slips; she did get the wages she expected. The Complainant stated that she only became aware that she had been taken off the books by the Respondent [in October 2022] when she read it in the Respondent’s submission to the WRC.

In cross examination, the Complaint accepted that she had gone sick at times during her employment and had kept in touch with the Respondent when she was out sick. When asked if she received her holiday entitlements when she was out sick, the Complainant stated that she didn’t think she did and that she did not get pay slips.  The Complainant denied she had ever said she had said she was never coming back.  When it was put to her that she had not kept in touch with the Respondent in the 12 months between when the Respondent alleges, she said she was not coming back and then contacting the company [October 2022 – October 2023] the Complainant stated that surely the company should have been contacting her.  In re-direct, the Complainant stated that she had never been issued with a contract of employment, there was no sick pay policy or communications policy.  She stated that her contact with the Respondent when she was out would have been maybe a call every six months.

In concluding, the Complainant submits that she never resigned and was shocked to learn she had been taken off the payroll. All through her employment if she had been absent through illness, she always returned to work. She believes she is entitled to a redundancy payment.  She believed she was an employee of the Respondent until she read in the media that the business had closed.

The Respondent submits that the Complainant, in her claim to the WRC, has indicated that her final day at work was 21 October 2022 and as she made complaint to the WRC on 20 October 2023, the complaint is not within six months of her leaving, so she is “out of time”, in relation to this complaint.

The Respondent also submits that the Complainant left the Respondent’s employment in May 2021 and returned in August 2021 as a new employee, she does not therefore have the minimum two years’ service required under the Act to claim a redundancy payment.

The Respondent submits that a temporary Covid layoff applied for most employees from week 1 to week 19 of 2021.  Following the lifting of restrictions, employees were re-employed week 19 (ending 10 May) to week 21 (ending 24 May) with all employees recommencing employment by week 21.  The Complainant did not recommence in week 21, it is submitted that she told Mrs Bennett, the shop owner, Respondent, that she did not want to return to work. A notice to Revenue was issued which shows her date of leaving as 21 May 2021.  The Complainant was re-employed in week 32 of 2021 and remained employed for the remainder of 2021 and for week 1 to 27 of 2022 (week ending 8 July 2022).  The Complainant was not paid for weeks 28 to 42 of 2022, so her last day of physically working in the shop was in week 27 (ending 8 July 2022). A notice to Revenue showing a leaving date for the Complainant for 21 October 2022 is available. The Respondent submits that the Complainant was contacted in week 42 and asked if she would be returning for the Christmas period.  The Complainant said she would not be returning, and she was informed that the Respondent would finish her in the system; she was removed from the payroll system and Revenue were informed of her leaving date as 21 October 2022.

The Respondent submits that during the time the Complainant was out sick she stayed in contact with the Respondent and received all her holiday entitlement, however, after the 21 October 2022, there was no contact from her, she was not paid any holiday entitlements and She never contacted the Respondent looking for them.

The Respondent submits that there was no further communication with the Complainant until she called on 6 October 2023.  At this point the business had closed down on 30 September 2023, due to the retirement of the owner.

Ms Marie O’Donoghue gave evidence on Affirmation at the hearing.

Ms O’Donoghue stated that after the first lockdown the shop opened in June 2020 and the Complainant worked four days that week but said she wanted to remain on PUP.  In May 2021, the shop re-opened and as the Complainant had not returned to work, Ms O’Donoghue removed the Complainant from the payroll.  In July 2021, Ms O’Donoghue agreed to take the Complainant back as a new starter.  From July 2021 to July 2022, the Complainant worked continually.  On 7 July 2022, the Complainant rang in with Sick Certs for two weeks. Messages kept coming in and the sick leave extended for a total of six weeks. Ms O’Donoghue contacted the Complainant in August 2022 asking her if she was returning but she got no reply.

There was no further contact with the Complainant until October 2022 when the witness rang the Complainant to see if she would work the busy Christmas period.  Ms O’Donoghue stated that the Complainant told her she was not coming back and she, Ms O’Donoghue, said to the Complainant that she would finish her on the books and that she was taking on new staff.  Ms Donoghue informed Revenue and the company accountant.

Ms O’Donoghue stated that she had no communications with the Complainant until 10 October 2023, nine days after the shop had closed.   There was some discussion about the shop closing.

In cross examination, Ms O’Donoghue stated that there were no communications between herself and the Complainant between June 2020 and May 2021. The witness agreed that she had been instructed to remove the Complainant from the payroll by the owner of the shop, Mrs Bennett, but she had not contacted the Complainant about removing her from the books. The witness stated that when the Complainant contacted her in July 2021, she had started her as a “new starter”.  Ms O’Donoghue stated that when she removed the Complainant from the payroll in May 2021, the Complainant was not replaced.

When asked about what happens to a new starter’s tax, as in would they normally be put on Emergency Tax, Ms O’Donoghue stated that it depended on the individual but if they are set up it might not happen. Regarding payslips, she stated that she used to print them, but people did not collect them.  Regarding the conversation she had with the Complainant in October 2022, the witness stated that the Complainant told her she was not coming back, and she finished her on the books. When it was put to Ms O’Donoghue that the Complainant maintained that she had not resigned, rather she was on sick leave, Ms O’Donoghue replied that she specified to the Complainant that she was taking her off the books.

In concluding, the Respondent submits that it is clear from the evidence that the Complainant was gone, and everyone believed she was gone.

Regarding the closure of the shop, Ms O’Donoghue stated that there had not been a Transfer of Undertakings, although the shop was bought by another entity. Other shop staff, 10 in total, were made redundant in August 2023.  

With regard to the Respondent’s submission that the complaint falls outside the scope of the Act because it was submitted more than six months after the end of the Complainant’s employment, Section 24 of the Act states:

Time-limit on claims for redundancy payment.

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

F56[(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the F53[Director General]—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director General] at his discretion considers reasonable having regard to all the circumstances.

Section 24 of the Act allows for a complaint to be lodged within 52 weeks of the date of the termination of employment.  Therefore, even if her employment ended on 21 October 2022 (as argued by the Respondent) and her complaint was received by the WRC on 20 October 2023, she is within the required timeline as stipulated by the Act. In the circumstances I find the Complaint is within time.

Payment of lump sum by employer.

Section 19 of the act states:

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.

Regarding the argument put forward by the Respondent that the Complainant does not have the required continuous service to qualify for a redundancy payment, the Schedule 3 of the Act provides:

1. Where an employee’s period of service has been interrupted by any one of the following—

(a) any period by reason of—

(i) sickness,

(ii) lay-off,

(iii) holidays,

(iv) service by the employee in the Reserve Defence Forces of the State,

(v) any cause (other than the voluntary leaving of the employment concerned by the employee) not mentioned in clauses (i) to (iv) but authorised by the employer …

continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given.

The crux of the matter in this instant case lies in whether the Complainant resigned in May 2021, as is proposed by the Respondent, and denied by the Complainant. If there was a resignation in May 2021, then she has no right to a redundancy payment as her service was broken, as per clause (v) of Schedule 3 above, “ the voluntary leaving of the employment concerned by the employee.” If she did not resign, her service is continuous.

Having regard to the sequence of events outlined above, Ms O’Donoghue gave evidence that she was told by the owner of the shop, Mrs Bennett, that the Complainant resigned her employment in May 2021 and she was instructed by the owner to remove the Complainant form the payroll system, Ms O’Donoghue did not contact the Complainant to inform her that this was being done.  The Complainant gave evidence that she did not resign her employment during this telephone conversation, and she always believed she was an employee. The owner of the shop, Mrs Bennett, did not give evidence at the hearing.

In the matter of Millett -v- Sherkin [2004] 15 E.L.R. 319, the Labour Court held that,

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation.”

Having regard to the instant case, the evidence relayed by Ms O’Donoghue as to the conversation she had with the owner of the shop Mrs Bennett, is hearsay evidence and therefore unreliable. The Complainant’s evidence on the other hand was cogent and forthright; she did not resign in May 2021, or at any time. The fact that the Respondent failed to confirm the alleged resignation in writing as would be expected means there is no significant evidence to support the contention that the Complainant had indeed resigned.

Regarding the conversation between Ms O’Donoghue and the Complainant in October 2022, I prefer Ms O’Donoghue’s evidence as she was clear that she had told the Complainant she would remove her from the books, and she did do this contemporaneously. When the Complainant checked with Revenue it was confirmed to her that her employment had ended on 21 October 2022. Therefore, I find the Complainant’s service did end on 21 October 2022, though again the Respondent should have followed up this decision by informing the Complainant in writing.

The fact that the Complainant did not make any contact with the Respondent from October 2022 until October 2023, when she heard about the shop closure, does not support her contention that she genuinely believed she was an employee of the Respondent after October 2022.

I find therefore that the Complainant did not resign from her employment in May 2021 and her service is continuous from 31 May 2004 to 21 October 2022. 

The complaint is well founded, and I require the Respondent to pay the Complainant her entitlements under the Act.

Continuous service, absence, resignation