Complainant

Respondent

Parties

Jennifer  Patterson

Imaginosity Company Limited By Guarantee

Complainant

Respondent

Anonymised Parties

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Representatives

  Self- represented

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-00055403-001

03/03/2023

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

CA-00055403-002

03/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055403-003

03/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055403-004

03/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055403-007

24/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055403-008

24/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055403-009

24/04/2023

The Complainant referred claims under the Redundancy Payments Act on the 3rd of March 2023.

She also lodged claims in respect of Section 12 of the Minimum Notice & Terms of Employment Act 1973 on that date.

On 24th of April 2024 the claimant referred a claim of Unfair Dismissal and also referred claims under section 27 of the Organisation of Working Time Act, 1997 for Adjudication on this date.

All claims were heard together on 22nd of September 2023.

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

CA-00055403-001

03/03/2023

The complainant submits she was employed by the respondent as general manager from 1 February 2009.    In March 2020 she was laid off due to the Covid-19 pandemic.   The complainant was advised that she was being temporarily laid off and that the company would be reopening but that she would be entitled to PUP payments from 30th of April 2020.   The complainant was in regular contact with the CEO of the company from this date and was reassured that the company would be reopening.  The complainant provided evidence of messages between the complainant and the respondent CEO up to end of June 2022.    On 28th of July 2022 she sent an email to company director Stephen Mc Clure.   On 16th of August 2022 the complainant received an email from Stephen McClure(Director) saying “It appears that as Imaginosity has ceased trading the accountant should register the employer and certify the amount due to the employee”.

On 10th of November 2022 the company accountant submitted a redundancy form on behalf of the complainant. 

On 6th January 2023 the complainant received a letter from Department of Social Protection stating her redundancy application was disallowed.    The claimant was advised to pursue a claim with the WRC .

There was no Appearance by or on behalf of the Respondent at Adjudication hearing.

General right to redundancy payment.

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,]

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 above). 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. 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.

The complainant advised the hearing that the respondent closed its doors on the 13th of March 2020, due to COVID.    She stated that she received an e-mail stating that she was temporarily laid off on the 5th of May 2020 and would be going on the PUP payment but that the business would be reopening.  

The complainant advised the hearing that the first time she was officially told that the respondent  had ceased trading was on the 16th of August 2022 by email from the director Stephen McClure.   The complainant told the hearing that she had been  in regular contact with the CEO of the company up to June 2022 and that these discussions had always indicated that the business would be reopening up until March 2022 when the CEO first mentioned the possibility that the company might not reopen but stated that she had not received any confirmation of this from the directors.

 In June and July 2022, the complainant contacted the company directors enquiring about whether there was a redundancy situation and on 28th of July 2022 she sent an email to company director Stephen Mc Clure in this regard.   On 16th of August 2022 the complainant received an email from Stephen McClure(Director) which stated, “It appears that as Imaginosity has ceased trading the accountant should register the employer and certify the amount due to the employee”.

The complainant advised the hearing that she then corresponded with the company accountant and on 28th October 2022 received an email from the accountant asking her to complete a partially completed attached form to which she replied with completed form on 28th October 2022.    On 10th of November 2022 the company accountant submitted a redundancy form on behalf of the complainant. 

On 6th January 2023 the complainant received a letter from Department of Social Protection stating her application was disallowed due to being submitted outside of the time limits. The complainant appealed this decision and her appeal in respect of the time limits was successful on the basis of the efforts she had made to get her redundancy paid and the delays being outside of her control, however she was then advised that her claim could not be processed due to the absence of a recent statement of affairs for the company showing inability to pay the redundancy itself (typically a balance sheet).  The claimant was advised to pursue a claim with the WRC.

The complainant has also submitted a claim in respect of the respondent’s failure to pay her notice entitlement.   I have also dealt with that matter in this this decision.

Having considered this matter I am satisfied from the evidence adduced that the complainant was dismissed by way of redundancy and is entitled to a redundancy payment lump sum based on the following:

Start date:                             1 February 2009

Termination date                 13th of September 2022 (16 August 2022 plus 4 weeks’ notice entitlement)

Weekly gross pay:                €1,354 p.w.

Covid Lay off PUP payments commenced  30TH of April 2020.

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. 

Having considered this matter I am satisfied from the evidence adduced that the complainant was dismissed by way of redundancy and is entitled to a redundancy payment lump sum based on the following:

Start date:                             1 February 2009

Termination date                 13th of September 2022 (end date of 16 August 2022 plus 4 weeks’ notice entitlement)

Weekly gross pay:                €1,354 p.w.

Covid Lay off PUP payments commenced  30TH of April 2020.

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. 

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

CA-00055403-002

03/03/2023

This is a duplicate complaint seeking payment of redundancy monies and stating that no adequate explanation was offered.

This matter has been addressed in CA-00055403-001.  Accordingly, I declare this claimto be not well founded.

I declare this claimto be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055403-003

03/03/2023

This relates to a failure to pay the complainant in respect of her notice period.   This matter has been addressed in CA-00055403-001 wherein my award includes payment of 4 weeks’ notice to the complainant.   Accordingly,  I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055403-004

03/03/2023

This refers to rights during the notice period and is a duplicate of CA-00055403-003.   Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055403-007

24/04/2023

The matter of making awards under the Redundancy Payments Acts 1967- 2016, where that complaint is based on the same set of circumstances grounding a complaint made under the Unfair Dismissals Acts 1977-2015 was addressed in A Van Sales Driver v A Bakery, ADJ -00006787.

The adjudicator noted that

“the EAT in Cusack v Dejay Alarms Ltd (UD1159 /2004 held that compensation may not be awarded twice on the grounds that an employee was dismissed by reason for redundancy and for unfair dismissal. 

I have found in CA-00055403-001 that the complainant was dismissed by reason of redundancy and made and award in this regard.   Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055403-008

24/04/2023

This claim relates to paid holiday/annual leave entitlements.  The complaint was lodged on 24 April 2023, so the cognisable period of the complaint dates from  25th of October 2022 to 24 April 2023.  

The complaint advised the hearing that she was laid off in March 2020 due to the Covid-19 pandemic.   The complainant submits that she was advised at the time that she was being temporarily laid off and that the company would be reopening but that she would be entitled to PUP payments from 30th of April 2020.   The complainant stated that she was in regular contact with the CEO of the company from this date and was reassured that the company would be reopening.  The complainant provided evidence of messages between the complainant and the respondent CEO up to end of June 2022.    On 28th of July 2022 she sent an email to company director Stephen Mc Clure.   On 16th of August 2022 the complainant received an email from Stephen McClure(Director) saying “It appears that as Imaginosity has ceased trading the accountant should register the employer and certify the amount due to the employee”.

The complainant has submitted related claims in respect of an entitlement to a redundancy payment and to payment in lieu of notice.  I have found in favour of the complainant regarding these matters in  CA-00055403-001.

The complainant at the hearing did not adduce any evidence in respect of untaken annual leave from previous leave periods and stated that her claim in this regard related to not being offered any entitlements due to the fact that she was unaware that her position was redundant.   Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055403-009

24/04/2023

This claim relates to Public holiday entitlements.    The complaint was lodged on 24 April 2023, so the cognisable period is 25th of October 2022 to 24 April 2023.   Therefore, I can only look at public holiday entitlements accrued in the cognisable 6-month period of the complaint.  The complainant by her own admission was no longer working for the respondent during this time period and therefore I declare this claim to be not well founded.  

The complainant has submitted related claims in respect of an entitlement to a redundancy payment and to payment in lieu of notice.  I have found in favour of the complainant regarding these matters in  CA-00055403-001.

I declare this claim to be not well founded.