ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050003
Parties:
| Complainant | Respondent |
Parties | Helena O'Connor | Europhil Service Station Ltd. T/a Nilands 24/7 |
Representatives | Self-represented | Did not attend |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061031-001 | 12/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00061031-002 | 12/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00061031-003 | 12/01/2024 |
Date of Adjudication Hearing: 25/09/2024
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 (as amended), following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
At the adjudication hearing, the Complainant was advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text and the Respondent’s employees are also referred to by their job titles.
The Complainant was also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. As there was no conflict of evidence, there was no requirement to take either sworn evidence or evidence on affirmation.
The Complainant was self-represented.
The Respondent did not attend the adjudication hearing.
Background:
The Complainant commenced her employment with the Respondent on 31 March 2006. Her employment as terminated with no notice on 15 September 2023. She was paid €500 per week.
The Complainant referred her complainant to the Director General of the WRC on 12 January 2024.
An adjudication hearing for the purpose of investigation of the Complainant’s claims was scheduled for 27 June 2024. Correspondence informing the parties of the arrangements for the hearing issued on 13 May 2024. Correspondence issued to the Respondent was returned to the WRC by An Post on 22 May 2024.
In light of the information provided by the Complainant in her WRC complaint referral form, where she named Pepper Finance as the appointed receiver, a WRC official contacted Pepper Finance by telephone to establish whether they are acting on behalf of the Respondent. To allow time for this matter to be clarified, the adjudication hearing scheduled for 27 June 2024 was cancelled.
Another adjudication hearing was scheduled for 25 September 2024. Correspondence informing the parties of the hearing issued on 7 August 2024 and 3 September 2024. The hearing letter issued to both the Respondent and the named receiver.
There was no attendance by, or on behalf of, the Respondent at the hearing. There has been no communication from the Respondent indicating any difficulties with attending the hearing or requesting a postponement. The Complainant attended the hearing.
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CA-00061031-001 - under section 6 of the Payment of Wages Act, 1991
Summary of Complainant’s Case:
The Complainant submits that, along with other staff, she was informed by a group WhatsApp message on 15 September 2023 that a receiver had been appointed by Pepper Finance Ireland. The premises closed that day and has not reopened since. The Complainant submits that no notice of termination of her employment was given. On 19 September 2023, via the same WhatsApp group, the Complainant was informed that the Respondent, was in the process of closing down the business. The short message thanked the staff for their support over the years and wished them well. However, the Respondent did not and has not since issued its employee with any information that the appropriate payments would be made, nor have they issued an RP50 forms. Despite efforts by the Complainant and her colleagues via WhatsApp and post, including sending RP77 forms, to contact the Respondent seeking clarification, the Complainant had heard nothing from the Respondent. The property has been locked and security is in place since the closure. |
Summary of Respondent’s Case:
There was no attendance by, or on behalf of, the Respondent. |
Findings and Conclusions:
While this is a complaint under the Payment of Wages Act 1991, it should be noted that the entitlement to payment for notice is set out under the Minimum Notice and Terms of Employment Act 1973, as amended (the Act). Section 4 of the Act provides as follows: 4. Minimum period of notice (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks. Based on the uncontested evidence of the Complainant, I find that she had been in the continuous service with the Respondent for 17 years and, consequently was entitled to eight weeks’ notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this complaint to be well founded. I order the Respondent to pay the Complainant €4,000 (eight weeks’ pay) in respect of the minimum notice she was entitled to. |
CA-00061031-002 - under Section 39 of the Redundancy Payments Act, 1967
Summary of Complainant’s Case:
The Complainant submits that, along with other staff, she was informed by a group WhatsApp message on 15 September 2023 that a receiver had been appointed by Pepper Finance Ireland. The premises closed that day and has not reopened since. The Complainant submits that no notice of termination of her employment was given. On 19 September 2023, via the same WhatsApp group, the Complainant was informed that the Respondent, was in the process of closing down the business. The short message thanked the staff for their support over the years and wished them well. However, the Respondent did not and has not since issued its employee with any information that the appropriate payments would be made, nor have they issued an RP50 forms. Despite efforts by the Complainant and her colleagues via WhatsApp and post, including sending RP77 forms, to contact the Respondent seeking clarification, the Complainant had heard nothing from the Respondent. The property has been locked and security is in place since the closure. |
Summary of Respondent’s Case:
There was no attendance by, or on behalf of, the Respondent. |
Findings and Conclusions:
The Redundancy Payments Acts 1967-2022 and Regulations made thereunder provide that in order to qualify for a statutory redundancy payment, an employee must (1) have at least two years’ continuous service, excluding any period of employment with that employer before the age of 16 years (2) be in employment which is insurable under the Social Welfare Acts, (3) be over the age of 16 and (4) have been made redundant as a result of a genuine redundancy situation. The relevant portion of Section 7 of the Redundancy Payments Act 1967 provides 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… Section 7(2) of the Act stipulates that redundancy arises when an employer ceases business in the place of employment, as in the within case. Section 19 of the same Act provides for the payment of a lump sum by the employer as follows: “19(1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or where by virtue of Section 12 an employee becomes entitled to redundancy payment, his employer shall pay to him an amount which is referred to in this Act as the lump sum. (2) Schedule 3 shall apply in relation to the lump sum.” S.I. No. 695/2004 - Redundancy Payments (Lump Sum) Regulations 2004 sets out the current rates. Based upon the Complainant’s uncontested evidence, I find on the balance of probabilities that she meets all the requisite criteria for redundancy as outlined above. I am satisfied that her employment terminated on 15 September 2023. I am further satisfied that the Respondent has not paid the Complainant her statutory redundancy lump sum entitlement to date. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2022 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I allow the Complainant’s appeal. I decide that the Complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts based on the following criteria: Date of commencement: 31 March 2006 Date of termination: 15 September 2023 Gross weekly remuneration: €500 This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period. |
CA-00061031-003 - under Section 39 of the Redundancy Payments Act, 1967
Summary of Complainant’s Case:
The Complainant submits that she did not receive proof of her employer’s inability to pay redundancy. |
Summary of Respondent’s Case:
There was no attendance by, or on behalf of, the Respondent at the adjudication hearing. |
Findings and Conclusions:
Regarding the Complainant’s claim that she did not receive proof of his employer’s inability to pay redundancy, there is no provision in the Act for an Adjudication Officer to hear such a claim. The Complainant appears to have used an outdated complaint form that is no longer available online. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2022 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have no jurisdiction to hear this complaint. |
Dated: 03rd October 2024
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Redundancy – minimum notice- |