Complainant

Respondent

Parties

Mrs Barbara Krasucka

Studio 54

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

The Respondent did not attend and was not represented at hearing. 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047418-001

30/11/2021

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

CA-00047418-002

30/11/2021

The Complainant claims entitlement to a statutory lump sum payment arising from the termination of her employment with the Respondent.  These matters came before the Workplace Relations Commission dated 30/11/2021 as a complaint submitted under section 39 of the Redundancy Payments Act, 1967 and a complaint submitted under section 12 of the Minimum Notice & Terms of Employment Act, 1973 respectively.  

The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 04/11/2024. 

The Complainant was employed by the Respondent as a dress maker at all material times.  The Respondent was engaged in the business of dress making and alterations.  The Complainant commenced her employment with the Respondent on 07/11/2005.  The Complainant was placed on lay off due to Covid by correspondence from the Respondent on 20/03/2020 and her last day in work before lay-off was 12/03/2020. 

Her employment ended on 12/07/2021 when the Respondent notified the Complainant by WhatsApp that the business will not be opening again as she is now “broke and cannot afford it” by way of a response to the Complainant when she texted the Respondent to ask about return to work arrangements. 

The Complainant was paid €540.00 gross per week for which she submits she worked 40 hours. 

This complaint seeking statutory redundancy arises in circumstances where the Complainant’s employment was terminated and she has neither received payment of a statutory lump sum nor confirmation of a return to her former role.  The Complainant seeks statutory redundancy in circumstances where her employment ended on 12/03/2020 and she has processed her claim to the WRC on 30/11/2021. 

CA-00047418-001 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973. 

The Complainant submits she did not receive any notice pay from the Respondent. 

CA-00047418-002 complaint pursuant to section 39 of the Redundancy Payments Act, 1967.

The Complainant submits she commenced work for the Respondent in November 2005 and that when the pandemic started the Respondent said she needed to close her business temporarily as per government guidelines and the Complainant applied for PUP.  The Complainant submits she and the Respondent were in touch from time to time and she (the Respondent) sent the Complainant a message that once it is safe to reopen she would do so and the Complainant would be able to return to work. 

The Complainant submits that when she contacted the Respondent in July of 2021 the Respondent replied that her business is closed and she is broke and can’t afford to reopen. 

The Complainant submits she was confused because the whole time the Respondent had said to her that her position would still be there for her when it is safe to come back to work.

The Complainant submits she messaged the Respondent a few times looking for termination of employment letters as she might need them for Social Welfare in the future.  The Complainant submits the Respondent replied to her saying she was bankrupt and she should go to the social welfare like the other workers. 

The Complainant emailed the Respondent on 19th November 2021 as follows: “Dear Maeve, I understand that you are closing down your business due to bankruptcy but it is your obligation to provide me with minimum notice, termination of employment letter and redundancy payments…also I would like to ask you to pay me my wages for the weeks before the pandemic started as I still didn’t receive any of those payments (around 2000 euro).  Could you please contact me in five working days to discuss this matter further?  I am just letting you know that if I won’t hear from you I will make a complaint to the Workplace Relations Commission to resolve the issue.” 

The Complainant submits the Respondent replied on WhatsApp saying that she had read the email and she would reply shortly. 

The Complainant submits she (the Respondent) did not reply at all.   

CA-00047418-001/2

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not engaged with the WRC or filed any written submissions or documentation.  In the circumstances no evidence has been proffered on behalf of the Respondent. 

Having waited some time to accommodate a late arrival and where I formally opened and closed the adjudication hearing on the 04/11/2024, I will proceed to set out hereunder my findings and conclusions.

In making these findings, I have considered the documentation submitted in advance of hearing by the Complainant and post-hearing at my request together with the uncontested oral evidence adduced by the Complainant at hearing on oath. 

CA-00047418-001 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973. 

Section 4 of the Minimum Notice and Terms of Employment Act 1973 (as amended) provides that an employee with an employment duration of between 10 years to 15 years is entitled to six weeks’ notice of the termination of their employment.  The Complainant worked for the Respondent for 15 years and when the Respondent notified the Complainant that her employment had ended by text message on 12 July 2021 the Complainant was entitled to pay in lieu of six weeks’ notice.  

Accordingly, I find that the Complainant is entitled to six weeks’ statutory notice of the termination of her employment and, in this regard, I direct the Respondent to pay her €3,240.00 equivalent to six weeks’ pay.

CA-00047418-002 complaint pursuant to section 39 of the Redundancy Payments Act, 1967.

The Relevant Facts

The Complainant’s last day at work before Covid lay off was 12/03/2020.  The Complainant filed the within complaint with the WRC on 30/11/2021 which raises the matter of time limits. 

The Relevant Law

24. Time-limit on claims for redundancy payment

(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment–

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he or she has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he or she is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General–

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his or her ignorance of the identity of his or her employer or employers or by his or her ignorance of a change of employer involving his or herdismissal andengagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his or her proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

The Complainant’s last day of employment was on 12/03/2020.  Therefore, the initiating referral form should have been filed with the WRC by 11/03/2021.  The within complaint was referred to the WRC on 30/11/2021.  Therefore, it is outside of the period of 52 weeks from the termination of the Complainant’s employment. 

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll [DWT0338]  where the test is set out as follows: 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

I note the Complainant accepted the assurances of the Respondent that once it was safe to re-open the business she would do so and the Complainant would then be able to return to work as it was adduced in evidence by the Complainant that they were in touch from time to time during the first year of the Covid lay-off. 

I am satisfied the Complainant accepted these representations and reassurances made by the Respondent throughout and indeed up until she received a text on 12/07/2021 from the Respondent by way of a reply to the Complainant’s text querying when she would be returning to work which provided as followsfrom the Respondent: “Studio 54 has been closed since 17/3 2020 it will not be reopening again as I am broke and cannot afford it.  I can send you some work that people are asking me about but I cannot do it as I am not even in Ireland.”

I have regard to the case of Alert One Security v. Taimoor Khan [DWT1572] where the Labour Court held as follows:

“In general, ignorance of one’s legal rights, as opposed to the underlying facts giving rise to those rights, cannot be accepted as excusing a failure to comply with a statutory time limit. In the instant case the Claimant is not relying on ignorance of the law, per se. Rather, as the Court understands it, he is relying on the combined effect of his lack of knowledge of how to process a claim and on the assurances given to him by the Respondent that he was either receiving his legal entitlements or that those entitlements would be met by the Respondent. In that regard it is well settled that material misrepresentation by a party, which caused or contributed to a delay in initiating a claim can constitute reasonable cause which both explains the delay and provides a justifiable excuse for that delay.

In all the circumstances the Court is satisfied that the Respondent’s misrepresentations to the Claimant constitute reasonable cause for the delay in presenting the within claims.” [emphasis added] 

For the reasons set out above and having carefully considered the totality of the evidence adduced I have decided, in accordance with s.24(2A) of the Redundancy Payments Act, to extend the time limit for submitting the within complaint to 104 weeks.

The Relevant Law:

This complaint is for a statutory lump sum payment under section 39 of the Redundancy Payments Acts, 1967-2014.  The Acts, related legislation and Regulations made thereunder require that in order to qualify for a statutory redundancy payment, an employee must -

(1)    have at least 2 years’ continuous service;

(2)    be in employment which is insurable under the Social Welfare Acts;

(3)    be over the age of 16;

(4)    have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and

(5)    not have received a lump sum payment. 

Periods of lay-off are excluded from reckonable service.  

However, while lay-off is non-reckonable service, the Covid 19 related lay-off payment scheme is a once off lump sum payment for employees who have been made redundant since 13/03/2020 or are made redundant before 31/01/2025 and have lost the opportunity to build reckonable service due to temporary lay-offs caused by Covid 19 restrictions from 13/03/2020 to 31/01/2022. 

Section 7(2) of the Redundancy Payments Act, 1967 states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed byreason of redundancy if for one or more reasons not related to the employee concernedthe 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…

Having heard and carefully considered the uncontested evidence, I am satisfied the Complainant’s situation is in compliance with section 7(2)(a) set out above.  The business has ceased trading and to carry on business in the place where the Complainant was employed, and her work has ceased.  I am satisfied the Complainant is entitled to a redundancy payment pursuant to the Redundancy Payments Acts, 1967-2014. 

I am satisfied that the Respondent has not paid any monies to the Complainant in respect of his redundancy at the date of hearing. 

In circumstances where the Respondent has ceased to carry on business where the Complainant was employed, I find a redundancy situation applies and I find the claim for a redundancy payment to be well-founded.  The Complainant is entitled to a redundancy payment based on the following facts established in evidence:

Commencement date:  07/11/2005

End of employment:  12/03/2020

Gross weekly pay:  €540.00

Period of Covid 19 related lay-off:  from 31/03/2020 – 29/03/2022

The Complainant was made aware of the fact than 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 1952-1966.  The calculation of gross weekly pay is subject to a ceiling of €600.00.  The calculation of the lump sum is a matter for the relevant department. 

CA-00047418-001 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973. 

I decide this complaint is well-founded.  Therefore, I direct the Respondent to pay to the Complainant the sum of €3,240.00 equivalent to six weeks’ pay.

CA-00047418-002

I allow the Complainant’s appeal against the failure of her employer to pay a redundancy.  I decide the within complaint is well-founded and I decide the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payment Act, 1967 based on the following criteria:

Commencement date:  07/11/2005

End of employment:  12/03/2020

Gross weekly pay:  €540.00

Period of Covid 19 related lay-off:  from 31/03/2020 – 29/03/2022

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

Time limits; no appearance by Respondent; minimum notice;