Complainant

Respondent

Parties

Paula Gogarty Matthews

Southmark t/a Superfresh (In Liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

David Kennedy David Kennedy Financial Consulting

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055674-001

22/03/2023

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

CA-00055674-002

22/03/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

A number of hearings were scheduled to facilitate the attendance of the liquidator.  In written correspondence to the WRC following the start of the final day of hearing, the liquidator confirmed that the company did not wish to make any comment.  The liquidator did not attend the hearing of this matter.

The complainant and a former director of the respondent company attended the hearing and gave their evidence under affirmation.  There were no questions posed or cross examination from the parties as their evidence was not in contention.

CA-00055674-001 Payment of Wages – Holiday Pay

The complainant submitted that she did not receive any holiday pay for the duration of her COVID layoff.  That period of layoff lasted from 13 March 2020 until 31 January 2022.

CA-00055674-002 Redundancy Payment

The complainant submitted that she did not receive the correct redundancy payment from the Department of Employment Affairs and Social Welfare as the liquidator did not provide the correct information.  She submitted that she was informed by the DEASP that the only way to correct the matter was to take a complaint to the WRC.

In evidence, the complainant stated that the liquidator had admitted to her that he had not forwarded the correct information to the Department of Social Welfare.  She stated that her start date with the respondent company was 25 October 1995 and that she worked there until she received her notice of termination on 30 March 2022.  She confirmed that she was on Covid Layoff from 13 March 2020 until 30 January 2022.  However, she remained on layoff at that time until she received notice of termination of employment on 30 March 2022.

The complainant stated that her weekly pay amounted to €80.80 in respect of one day per week and she confirmed that she was not working for two periods of maternity leave.

The former company director also attended the hearing and gave evidence that everything that the complainant had stated was true.  She provided clarification and confirmation on the dates of employment, maternity leave dates, Covid and subsequent layoff and of the date when the company entered the liquidation process in the Summer of 2022.

The liquidator did not attend the hearing of this matter. 

CA-00055674-001 Payment of Wages – Holiday Pay

Section 19 of the Organisation of Working Time Act, 1977 states as follows:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

In the usual course of things, the complainant, as a part-time employee, was entitled to have her annual leave entitlement calculated under Section19(1)(c) of the Act.  As the complainant did not work during the two-year period prior to her termination, she was not entitled to annual leave in accordance with the provisions of the Organisation of Working Time Act.  I find that that as there was no entitlement to holiday pay, the Payment of Wages Act has not been contravened.

CA-00055674-002 Redundancy Payment

Section 7(1) and (2) of the Redundancy Payments Act, 1967 state 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,

Having regard to the foregoing, and to the evidence provided by the complaint and the witness, I am satisfied that her employment came to an end by way of redundancy in accordance with Section 7(2)(a) the Act.

The evidence of the complainant is that she was employed from 25 October 1995 until she received her notice of termination on 30 March 2022.  This was confirmed by the witness who was the former Director of the Respondent company.

I find that the complainant has established an entitlement to a redundancy payment in accordance with the Act based on her service from 25 October 1995 to 30 March 2022 and is entitled to succeed in her appeal against the decision of the Deciding Officer of the Department of Employment Affairs and Social Protection.

CA-00055674-001 Payment of Wages – Holiday Pay

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was not entitlement to Holiday Pay and that the Payment of Wages Act was not contravened.

CA-00055674-002 Redundancy Payment

Having considered all the relevant information provided by the complainant, I am satisfied that she has established that she is entitled to a redundancy payment in accordance with the Acts.  My decision is to allow the complainant’s appeal against the decision of the deciding officer which I have found was based on erroneous information.

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 have decided that the complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement: 25 October 1995

Date of Termination: 30 March 2022

Gross Weekly Pay: €80.80

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

Redundancy Payments Act – Appeal of Deciding Officer decision – original decision based on erroneous information – facts of employment duration established – appeal allowed