Complainant

Respondent

Parties

Gregg  O Sullivan

Larmona Ltd

Representatives

  Appeared In Person

William Wall, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00064055-001

12/06/2024

On 12 June 2024, the Complainant submitted a claim for a statutory lump sum in Redundancy. This followed a period of temporary layoff.

On 18 June 2024, the Respondent was notified of the claim. Peninsula came on record in the case on August 8, 2024.

Both Parties were invited to hearing first on October 9, 2024, which was postponed.

The hearing in this case occurred on November 1, 2024.

The Respondent applied for access to a remote hearing to facilitate another hearing in Dublin on the same day.

The hearing took place on the hybrid screen, where the Complainant was present in the Cork Office and the Respondent representatives presented from Dublin.

Both Parties submitted written submissions. Both Parties had engaged in prehearing discussions which had not resolved the claim.

Two days before the hearing, on October 30, 2024, the Respondent sought another postponement. On this occasion, the application was grounded on a Company Representative finishing at the business and a lack of availability for a WRC hearing.

The application was opposed by the Complainant.

I considered the application at the outset of the hearing, I explained to the Respondent representative that I considered that a statutory Inquiry took precedence over “business handovers.”

and refused the application.

The hearing progressed. The Complainant took the affirmation to accompany his evidence.

There were no witnesses on the Respondent side.

As I required more certainty on the Complainants’ date of commencement at the business, I requested additional records from the Complainant.

These were received promptly and shared with the Respondent for comment. No comments were received.

As I live in the town where the business is based. I declared at the outset that I had frequented the business premises over the years but had no knowledge of business operations. Both Parties accepted this declaration.

The Complainant outlined that he had worked as Bar Staff in his family business from January 1, 2010, to the date of his being placed on temporary layoff on 7 January 2024.

He submitted that he received €15.00 per hour for a 30-hour week. Pay slips were exhibited .

The business was taken over by Larmona ltd in 2022.

The Complainant submitted that the business closed for reported maintenance of 6 weeks in early January 2024 and have never re-opened.

He took steps to trigger a claim for redundancy by compiling an RP9 on 5 February 2024 and an RP77 on 26 March 2024.

Larmona ltd has not paid the lump sum payment in redundancy.

The Complainant exhibited the RP 9, application for redundancy from lay off, which he compiled on 5 February 2024. The Respondent did not complete either Section A, notification of lay off or Section C, counter notice to claim for a redundancy lump sum payment.

The Complainant gave a cogent account of the uncertainty at the business following the transfer. He rejected the volume of breaks in service relied on by the Respondent.

He recounted it being very difficult for him to get a clear response to his questions surrounding his future at the business, following his being placed on temporary layoff.

He offered a clarification on whether he had been offered new work following his Lay Off in January 2024? when he mentioned that various options were flagged by the Respondent. These did not crystallise into a written offer on foot of his application for Redundancy.

Mr Wall did not avail of the opportunity provided to cross examine the witness.

I sought to explore the commencement date of employment as I was met with variances on the RP9, and statutory documents. The Complainant submitted some PRSI records post hearing.

The Complainant also submitted some PRSI details which he maintained linked his commencement date to August 2009 .

The Complainant submitted that his employment ended during the last week of July 2024 and he had been denied his redundancy payment .

The Respondent operates the Black Barrel Pub / Restaurant in Midleton which closed following the floods in late 2023.The Complainant was placed on Temporary Lay Off in January 2024.

The Respondent submitted that the employment is 22 hours per week for €331.00.

The Business has not re-opened to date and there is no immediate plan to re -open. Mr Wall told the hearing that Larmona ltd is a separate and distinct legal entity to the Blue Haven Group. The two companies have a director in common.

This business was subject to a Transfer of Undertakings in 2022. The Respondent accepts continuity of service under TUPE Regulations in the complainant’s case.

The Respondent has accepted the Complainant is entitled to a Redundancy Payment on termination of his employment.

The Respondent came to hearing to meet one claim, that of Redundancy and objected to the ventilation of unpaid annual leave, which was not incorporated in the claim made to the WRC in June 2024.

Mr Wall for the Respondent submitted that there was a lack of clarity in the complainants’ date of commencement and clarifications from Revenue were awaited.

He exhibited a Revenue record from April 2024 which recorded the employment history as

1 January 2011 to 29 June 2022

A separate Revenue document dated 14 May 2024 recorded the start date as 1 January 2010.

The Respondent has accepted that the Complainant triggered a claim for a statutory lump sum payment in redundancy from an extended period of lay off and without the Respondent having made a counteroffer of employment.

The Respondent representative detailed a number of breaks in service as:

14 November 2022 to 21 November 2022

28 November 2022 to 5 December 2022

15 May 2023 to 5 June 2023

16 October 2023 to 30 October 2023

6 November 2023 to 13 November 2023

29 January 2024 to 18 July 2024

These dates should be considered in any calculation of a Redundancy lump sum payment.

The Respondent representative outlined that the Respondent was not able to pay the statutory redundancy lump sum payment and is at present engaging with the Social Insurance fund to fund the claim. The Respondent did not exhibit any balance sheet or Profit and Loss sheet, which bolstered the plea of inability to pay.

As the Respondent did not provide witnesses to the hearing, I could not invite cross examination.

The Respondent contended that the employment ended on 18 July 2024 .

I have been requested to consider the facts of this case and to decide whether the Complainant can avail of a Statutory Redundancy lump sum payment on the termination of his employment.?

In reaching this decision, I have had regard for both Parties written submissions and the Complainants oral evidence at hearing.

I appreciate that the topic of unpaid annual leave on cessation of employment is a live and unresolved issue for the Parties. However, it is not incorporated in the complaint form dated 12 June 2024.I hope the Parties can continue their dialogue in that regard.

Both Parties came to hearing united on the contextual background to this case. Both Parties accept that the Complainants employment transferred under TUPE Regulations on 28 June 2022.

Regulation 3 of which provides:

3. Application

(1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

(2) Subject to this Regulation, in these Regulations—

“transfer” means the transfer of an economic entity which retains its identity.

“Economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.

This provides a protection in Law on the continuity of employment. I have established that the Complainant received a statement of terms of employment which placed his start date on 28 June 2022 as signed by the Human Resource Manager on 22 July 2022. The statement confirms continuity in employment, an hourly rate of €15.00 an hour for full time employment and was signed by the Complainant on 14 September 2022.

The Respondent accepts that the complainant’s tenure is protected by TUPE Regulations which place the obligations arising from the contract existent on the transfer date at the feet of the Respondent.

Regulation 4. Rights and obligations

(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

I must have regard for the entire service period in which the Complainant engaged with both the Transferor and Transferee.

I have reviewed all document submitted by both Parties and on the balance of probability, I find that the most likely commencement date is that recorded by the Complainant on the RP 9 that of

August 1, 2009

I have identified this date from the Employment records relied on by the Complainant.

I find that the Complainants employment lacked robust employment records post TUPE. Of course, I understand that this was a new business venture, however, I am equally certain that the Management of Larmona ltd was a shared Management within a well-known Hospitality business, which shared a Director.

I would have expected to see a far higher standard of communication, notwithstanding the reported trading difficulties ventilated by Mr Wall for the Respondent.

I have found that the Complainant has been left in limbo from once the temporary lay off commenced on 8 January 2024. That is contrary to the spirit of temporary lay off.

I accept that the claim is based on a 30 hr work pattern as reflected in the  most recent pay slips .

Section 7 of the Redundancy Payments Act 1967 outlines the circumstances of a general right to a redundancy payment.

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.

I accept that the Complainant was placed on temporary lay off on 8 January 2024 in acco0rdance with Section 11(1) of the Redundancy Payments Act 1967.

Section 12(1) (b) provides for access to a Redundancy Payment following lay off contingent on notice to claim that, Payment.

Right to redundancy payment by reason of lay-off or short-time.

12.— (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

I accept from the Complainants uncontroverted evidence that he made multiple attempts to claim this payment from temporary layoff and was unsuccessful.

There is a defence allowable to the respondent in accordance with Section 13 of the Act. However, I am satisfied that the Complainant did not receive an offer of employment in writing within 7 days.

Therefore, taking all the facts into consideration, I find that the Complainant was made redundant from his position by his application during temporary layoff.

This Redundancy occurred in the circumstances of Section 7(2) (b) of the Redundancy Payments Act.

I find that the employment ended on 29   July 2024.

I find the claim for a Redundancy lump sum payment is well founded.

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.

I find that the Complainant is entitled to receive a lump sum payment in Redundancy from the Respondent on the following basis:

Commencement date:  1 August 2009

Date of Termination:   29 July 2024

Salary     €15.00 per hour =   €450 per week 

Breaks in service:

14 November 2022 to 21 November 2022

 16 October -30 October 2023

  20 November -27 November 2023

All of the above rests on the Complainant being in insurable employment throughout his tenure.   

I order the Respondent to pay this lump sum payment in Redundancy and to adopt an open style around any eventuality of both Parties requiring to approach the Social Insurance fund as a second step.                 

Claim for Redundancy, Temporary Lay Off.