ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049244
Parties:
| Complainant | Respondent |
Parties | Pat Lally | Mr Patrick Gilsenan trading as Call-A-Car |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Geraldine Duffy NCUCIS Monaghan, Citizens Information Centre |
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Complaint:
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-00060507-001 | 13/12/2023 |
Date of Adjudication Hearing: 07/03/2024
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)).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to 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) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that, as a matter of expediency, I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was represented by a member of Citizens Information. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form which was dated the 13th of December 2023. The Complainant alleges that he was made Redundant and that his Employer never paid him Redundancy. 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. |
Summary of Respondent’s Case:
The Respondent had no representation at this hearing. The Respondent did attend, and he conceded that the Complainant was made Redundant and that he was entitled to his Statutory Redundancy. The Respondent indicated that he was not in a position t pay Statutory Redundancy at this time. He supported the Complainant’s application for a Statutory Redundancy claim. 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.
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Findings and Conclusions:
I accept that the Complainant’s job was made redundant, and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014. Having heard the Complainant’s evidence, I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: September 24th 2016 The employment ended: August 4th 2023 Gross weekly wage : €296.00 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.
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Decision: 19th of March 2024
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 39 of the Redundancy Payments Act, 1967 CA-00060507-001 – I am allowing the Complainant’s Appeal against the decision not to pay Statutory Redundancy and have established the following facts: The employment started: September 24th 2016 The employment ended: August 4th 2023 Gross weekly wage : €296.00
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Dated: 19th March 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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