Complainant

Respondent

Parties

Priscilla  Howlin Cahill

R & P Doyle Ltd t/a  Mace Kilmore Quay

Representatives

  Self-represented

 Ronan Doyle

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-00056806-001

23/05/2023

The complainant commenced employment as a Deli Assistant on 30 April 2012.  On 01 November 2019 her employment transferred to the respondent under a Transfer of Undertaking obligation.  The respondent operated the business from 01 November 2019 to 27 October 2022.  The complainant’s employment ceased on 27 October 2022.  The complainant claims she has not been paid her statutory redundancy entitlements.  The complainant worked 32 hours per week and was paid €384 gross per week.  She submitted her complainant to the Workplace Relations Commission on 23 May 2023. 

The respondent ceased operating the shop and handed back the lease of the premises.  The respondent company has no assets and is not able to make any redundancy payment to the complainant.

The complainant stated that she had worked in the Deli since 2012.  The respondent company took over the operation of the shop in 2019 and her employment transferred without interruption.

In October 2022 the staff were told the respondent was closing and the lease was reverting to the original operator.  The complainant and other staff were under the impression that the shop would be closed for 7 to 10 days and then re-open.  There was no contact from the new operator, so the complainant went to see him.  She was told the Deli would not be opening at that time. 

The complainant stated that redundancy was not discussed as all the staff thought they would be back in work within a week or two of the closing.  The shop did not re-open in 2022.  In May 2023 the shop re-opened, trading under a different name.

The complainant acknowledged that the Director of the respondent company, Mr Doyle, was a good fair boss and all payments up to the date her employment ceased had been made.

The complainant sent an RP77 form to the respondent but did not get an acknowledgement.  She submitted her complainant to the Workplace Relations Commission on 23 May 2023. 

Mr Doyle stated that the respondent company took a lease of the shop in 2019.  All the staff transferred to the respondent under Transfer of Undertaking obligations.  The company traded well during Covid as customers were shopping locally.  However, the cost of the lease was high, and, in the summer of 2022, business began to decline as more options were available to customers outside of local shopping.  The respondent agreed an arrangement with the lessor to return the lease on the premises.  Mr Doyle stated that he believed the lessor would be re-opening in a week or two and would be taking back on all the staff.  He understood at the time of closing that redundancy would not arise as the employees would be taken back on in a week or two.

That did not happen, the shop did not re-open, and the staff were left without employment.  Mr Doyle stated that he did not receive the complainant’s RP77 form due to documents being destroyed in a fire.  He stated that the respondent company did not have any assets and was not able to pay redundancy money.   Mr Doyle stated that in the circumstances, which he had not foreseen, he thought the complainant would be due a redundancy payment.

The complainant claims that her entitlement to a redundancy payment arose in October 2022 when her employment ceased.  The respondent company has no assets and cannot pay a redundancy payment.

Legislation

Section 7 of that Redundancy Payments Act, 1967, provides the following in respect of redundancy payments:

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 alsocapable of doing other work for which the employee is not sufficiently qualified or trained,

(2A) …

(3) …

(4) …

(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Finding

Having carefully considered the evidence presented to me I am satisfied that the complainant was dismissed by reason of redundancy and is entitled to a redundancy payment pursuant to section 7 of the Redundancy Payments Acts 1967-2014. 

I allow the complainant’s appeal and I decide that she is entitled to a statutory redundancy payment pursuant to section 7 of the Redundancy Payments Acts 1967-2014 based on the following criteria:

·        Date of commencement of employment      30 April 2012

·        Date of termination of employment              27 October 2022

·        Gross weekly wage                                            €384

This decision is made subject to the complainant being an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts during the relevant period.

Redundancy