RPD246

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043599 (CA-00053942-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 October 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 2 May 2024.

The following is the Decision of the Court:

DECISION:

The matter before the Court is an appeal by David Hasala against a decision of an Adjudication Officer (Adj-00043599, CA-00053942-001) in a complaint made against his former employer Mounthawks Inns Limited O’Donnell’s Bar and Restaurant under the Redundancy Payments Act, 1967 (the Act).

The Adjudication Officer held that the complaint failed as there was no appearance by either party at the Workplace Relations Commission hearing.

A Notice of Appeal was received by the Court on 4 October 2023 and a hearing of the Labour Court was held in Cork on 02 May 2024.   This case is linked to [MND245 and TED2410.

The parties are referred to in this Determination as they were at first instance. Hence, Mr Hasala is referred to as “the Complainant” and Mounthawks Inns Limited O’Donnell’s Bar and Restaurant is referred to as “the Respondent”.

Position of the Respondent

There was no submission or appearance by, or on behalf of, the Respondent at the hearing.

Rule 21 of the Labour Court Rules 2024 provides that:

“Where the Respondent does not turn up for the hearing and, no satisfactory explanation is given to the               Court for the failure of the Respondent to appear, the Court may proceed to hear the appeal”.

The Court was satisfied that the Respondent in this case was on notice of the appeal.

By letter dated 22 March 2024 the Respondent was notified of the date, time, and location of the appeal hearing. As is the usual practice of the Court, the Court Secretary contacted the parties in advance of the hearing date to request their submissions and to confirm their attendance at the hearing. No reply was received to any emails sent to the Respondent. On 24 April 2024 the Court Secretary rang the Respondent’s phone number at 12.02pm and left a message. At 14.55pm, the Court Secretary received a call from Respondent’s number, but the caller hung up when the Secretary answered the call stating that she was from the Labour Court. No response was received to subsequent calls and emails from the Court Secretary to the Respondent in advance of the hearing on 2 May 2024.

As no satisfactory explanation was given to the Court to explain the Respondent’s failure to appear at the hearing, the Court decided to proceed to hear the appeal.

Position of the Complainant

The Complainant gave evidence under oath. He submits that he is entitled to a statutory redundancy payment in circumstances where the restaurant in which he worked as a head chef closed.

The Complainant commenced employment on 13 June 2019 as a Chef de Partie and subsequently became Head Chef. He worked 40 hours per week over 5 days, from Wednesday to Sunday. His rate of pay was €751 per week gross.

The Complainant did not receive a statement of terms and conditions of employment on commencing employment and was told that he one would be provided to him at a later point. No statement of terms and conditions of employment was ever issued to him.

The Complainant was laid off from his employment in March 2020 due to the COVID pandemic.  He returned to work from that period of lay-off on 29 July 2020. 

On Monday 10 October 2022, the Complainant received a phone call from the Respondent to advise him that the restaurant was closing, and that he would receive two weeks’ notice. He asked about a redundancy payment and was told that he would receive any payments owed.

His last working day was Sunday, 9 October 2022.  On 19 October 2022, he received his wages into his bank account but did not receive any notice payment, or statutory redundancy payment. The Complainant tried to contact his employer, but the Respondent would not take his calls or reply to his emails.

The Relevant Law

Section 7 of the Redundancy Payment Act, 1967, sets out a general right to a redundancy payment 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,

Deliberation and findings

The appeal before the Court concerns the Complainant’s entitlement to a statutory redundancy payment in accordance with Section 19 of the Redundancy Payments Act 1967.

The key facts asserted by the Complainant are that he commenced employment with the Respondent on 13 June 2019 and was laid off from his employment on a temporary basis on 22 March 2020, because of the Covid-19 pandemic. Following that period of lay-off he returned to work on 29 July 2020.  He continued to work in the restaurant and became the Head Chef.  On 10 October 2022, his former employer contacted him by phone to advise him that the restaurant where he worked was closing. The restaurant subsequently closed. The Complainant’s last working day was Sunday 9 October 2022.

The Complainant’s testimony was not disputed, as the Respondent did not attend the hearing.

Having considered the written and oral submissions made by the Complainant, the Court is satisfied that he was employed by the Respondent during the relevant time. The Complainant provided the Court with details from his Revenue online account which records an initial start date of employment with the Respondent as 13 June 2019 and a date of leaving as 22 March 2020. The Court accepts that the Complainant was laid off from his employment from March to July 2020 due to COVID-19 pandemic. His Revenue account records a second period of employment with the Respondent from the period between 29 July 2020 to 17 October 2022.

The Complainant provided the Court with copies of payslips issued to him from the commencement of his employment up until March 2020. His evidence was that he did not receive payslips after that date, and subsequently had to request payslips from the Respondent in order to secure a bank loan.  The Complainant provided the Court with copies of two payslips, dated 20 August 2021 and 27 August 2021.  The Complainant also submitted a copy of a letter addressed to the Respondent, dated 7 November 2022, and sent by email the following day, in which the Complainant sought payment of a notice and statutory redundancy payments.

The Complainant came across as a credible and honest witness, and in the absence of any evidence from the Respondent, the Court accepts the uncontested sworn evidence of the Complainant.

Having regard to the facts as set out by the Complainant, the Court finds that the Complainant has satisfied the requirements as set out in 7(1)(a) of the Act, insofar that he was employed for the requisite period to accrue an entitlement to a redundancy payment where his employment is terminated by reason of redundancy.

The Court finds that the requirements as set out in Section 7(2)(a) of the Act are satisfied in so far that the Respondent employer ceased to carry on the business for the purposes of which the employee was employed.

Decision

The Court finds from the undisputed facts of the case before the Court that the Complainant’s was given notice that his position was redundant within the meaning of the Act at Section 7 on 10 October 2022, and that his employment terminated on 17 October 2022.

Accordingly, the Court finds that the complainant is entitled to a redundancy payment in line with the Redundancy Payments Acts in respect of his service from 13 June 2019 to 17 October 2022.

The complainant’s rate of pay was €750.71 per week and that figure should be used when calculating the redundancy amount in accordance with Schedule 3 of the Redundancy Act 1967

The Court determines that the Complainant’s claim is well founded. 

The Adjudicator’s decision is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
13 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.