Complainant

Respondent

Parties

Bernadette  Walsh

 Louise Walsh T/A The Clothes Horse

Representatives

 Katherina White Solicitors

 No Appearance by or on behalf of the Respondent on either day

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-00056018-001

12/04/2023

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

CA-00056018-002

12/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00056018-003

12/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056018-004

12/04/2023

On 12 April 2023, the Complainant, then a Lay Litigant submitted 4 employment rights complaints to the WRC in respect of her 15-year tenured employment at the Respondent Launderette.

The Respondent, Ms. Louise Walsh was placed on notice of all 4 complaints on 20 April 2023.

On August 17, 2023, the Citizens Information Service forwarded a written submission in support of the Complainant for hearing on 11 September 2023. This was copied to the Respondent.

On 24 August 2023, the Respondent introduced a legal representative to the case. This was rescinded by 23rd November 2023.

The 11 September 2023 hearing was postponed on application of the Respondent. A further hearing set for January 2024 was cancelled.

On February 1, 2024, the Complainants current Solicitors came on record on her behalf.

On February 19, 2024, the Respondent sent an email to the WRC which recorded that she remained on sick leave and would remain there. The Respondent denied the claim made for Redundancy and confirmed that the complainant “but was left go due to her protest outside my shop ……”

Both Parties were invited to hearing scheduled for April 15, 2024, at 10 am. Neither Party attended the hearing.

Instead, I was met with a representative from the Complainants representative office, who confirmed that they were under the impression that the hearing was cancelled. The representative sought that a decision follow in case on foot of outline submissions.

At the same time, I had received an alleged medical certificate which failed to meet the exceptional grounds necessary to adjourn the hearing.

I wrote to both Parties setting out my misgivings regarding both Parties approach to the scheduled hearing.

I endeavoured to get both parties to focus on the four unresolved complaints and in the interest of fair procedures, I wrote to both parties on that same day.

“ …. In the interest of fair procedures, I have decided to schedule this case for hearing on one last occasion to obtain oral evidence from both parties. …. “

In preparation for this day, I sought:

Documents from Court Cleaners pre-2017 (earlier employers)

Any documents which activated Temporary Lay Off

PRSI records ~October 2007 to May 2024

Is the Business Trading?

Final Submission from both parties

Confirmation of attendance.

Both Parties were invited to a resumed Remote Hearing set for 10 June 2024.

In the run up to the hearing, the Respondent confirmed that she had a new job and would not attend the hearing. The Respondent did not activate the WRC Postponement Policy, she simply did not attend and did not file a defence in the case.

I started a new job yesterday and for the first three to four weeks I will be unable to answer my calls due to onsite training. I will have a person filling my role in the coming ten days.

(June 5, 2024)

The hearing proceeded as planned on June 10, 2024, at 10 am on the Remote Platform in accordance with section 31 of the Civil and Criminal Law (Miscellaneous Provisions) Act 2020, as amended.

At the conclusion of the hearing the Complainant gave an undertaking that she would forward DSP associated records which confirmed that she had been placed on Temporary Lay Off by the Respondent. I have waited three months. I have followed up with the Complainants Representatives and this request has not been met.

In the interest of my need to complete this decision in this long running case, I have decided to press on to reaching a decision in the case based on oral and written submissions.

The Respondent is classified as a habitual no show. I am satisfied that the Respondent was fully on notice of all hearings in the case and has adopted an unhelpful avoidance of this Statutory Inquiry.

I have drawn inference from this high-end avoidance by an employer.

The complainant, present at hearing with her Solicitor gave evidence by means of affirmation.

The Complainant worked as a Shop Assistant from 30 October 2007 to 24 January 2023. The early years to 2017 were spent in the employment of Court Cleaners, until the Respondent took over this business on the retirement of the previous owner, Ms A in 2017. The Complainant was approached by the Respondent to remain on at the business.

The employment was continuous. The business was renamed as The Clothes Horse and the Respondent is a Sole Trader.

The Complainant submitted that she was paid €13.00 per hour, gross.

Complainant evidence:

The Complainant acknowledged that she was first based in Carrigtwohill and latterly based in Castlemartyr. She had not received a statement of terms of employment. The Complainant earned €13.00 per hour gross for a variable working week. She confirmed two breaks in service as:

20 March 2020 – 8 June 2021 (Covid related)

26 October 2022 to 16 January 2023, described as Temporary Lay Off.

The Business in Carrigtwohill has since closed and Castlemartyr remains trading.

It was the Complainants case that her employment was terminated following an extended period of lay off preceded by a business instability, where wages were unpaid, and staff were directed to be paid from the till up until September 2022.

The Complainants Representative relied on the written submissions already on file.

The Complainant found new work on the Tuesday after Easter, 2023.

CA-00056018-001 Payment of Wages Act, 1991

The Complainant submitted that she had received two pay slips for weeks 43 and 44 of 2023 which amounted to

€ 208 .00, 16 hrs(W44)     and €552.50 ,42.5 hrs (W43)

These did not correspond with any payment received for weeks ending 28 October and 4 November 2022. Bank Statements were exhibited for this period.

The Complainant stated that she was aware of the respondents’ personal problems, and it wasn’t unusual for her to receive staged waged between Friday and Wednesday, but sometimes, there was just no pay.

The Complainant recalled October 2022, when she first broached the topic of Temporary Layoff with the Respondent. The business was quiet, and she suggested being placed on temporary layoff. The Respondent was uncertain on whether she could do this, but she told the complainant she had taken advice and she signed the forms.

It took me some time to affix a dateline for this development with the complainant as October 26, 2022. She stated that she may have been paid for her last week of work but not the three days of Monday, Tuesday and Wednesday   and arrears.

The Complainant exhibited a dossier of correspondence linked to her attempts to receive her pay owed from October 2022 onwards. The Respondent promised to pay but did not pay.

The Complainant raised the topic of notice but accepted that a claim for Redundancy post Temporary Lay Off negates notice.

The Complainant stated that she had made it clear that she was not leaving the business and would return.

The Complainant claimed Redundancy from Temporary Lay Off in January 2023, by post.

She later saw an advertisement on Facebook dated February 15, 2023

Part time Launderette Assistant Required, approximately 15 hours per week, may suit a student, full training provided, afternoon and Saturday work available.

 The Respondent did not engage in the complainant’s quest for payment.

The Complainant sought payment of €760.50 gross in respect of unpaid wages, which amounted to an unlawful deduction in wages contrary to Section 5(1) of the Act.

The Complainant relied on the Decision ADJ 37290 dated December 12, 2022, Hayden Murphy and the same Respondent, where the Adjudicator (myself) identified a nonpayment of three weeks gross pay in addition to unpaid annual leave under the Payment of Wages Act.

From a perusal of the Bank statements submitted by the complainant, she has cross matched a payment which appears to have emanated from the Respondent.

However, these are not on point with the pay slips issued for the same period.

Bank Details                                                                                                Pay Slips issued.

16 September 2022   €406.88           vis a vis pays slips     23 September 2022 €484.00 wk. 38  

26 September 2022 €350.00                                                30 September 2022 €528.00 wk. 39

3 October 2022 €300.00                                                        7 October 2022    €533.00 Wk 40

                                                                                                   14 October 2022 €552.50   wk. 41

20 October 2022 €179.00                                                         21 October 2022 €552.50 wk. 42

26 October 2022 €349.00                                                         28 October 2022   €552.50   wk. 43

                                                                                                 4 November 2022 €208.00 wk. 44

It is week 43 and 44 which form the foundation for the instant claim. I am not in a position to consider a claim for an overpayment of USC as my jurisdiction does not cover this.

CA-00056018-002 Redundancy Payments Act, 1967

The complainant has claimed a Redundancy Payment following Lay off on 26 October 2022.

On her written complaint, she detailed that she served an RP9 on the Employer on 16 January 2023, without receiving a response. On 27 March 2023, she served a RP77 on the Employer, without response.

She calculated a statutory redundancy payment owed as €13,391.73 in respect of 13.79 years with two break periods in 2020/2021 and 2022/2023. Weekly wage was captured as €468.57.

In her evidence to the hearing, the Complainant confirmed that she had worked continuously from 30 October 2007, first for Court Cleaners and from 31 October ,2017 for the Respondent. She submitted that TUPE Regulations applied to that transition.

The Complainant confirmed that this job was insurable employment.

She described a chaotic and erratic system of payment of wages for both her and the other part time workers.

In October 2022, the Complainant broached the subject of Temporary Lay Off directly with Ms Carey, the Respondent as the business had become quieter. She put forward the proposal of letting her go on “lay off “. The Respondent was uncertain on whether this was viable. She took advice and “signed the forms”.

Both Parties were clear that the complainant was not leaving the business.

The Complainant has been requested to produce a record of these signed papers which recorded the commencement of Temporary Lay Off. She has been unable to furnish these foundation documents over the past 3.5 months with no reason given outside of a deferral to the DSP Office.

The complainant told the hearing that she was “fully sure that she would go back to work” she said she was in receipt of Job seekers benefit from October 26, 2022, onwards to when she found new work after Easter, 2023.

The Complainant gave evidence of pursuing the Respondent for unpaid wages during November 2022 after she commenced TLO (Temporary Lay Off) but all the respondents intentions to pay her went unrealised.

The complainant exhibited a partially completed RP9 at Part B, dated 16 January 2023, which signalled her notice of intention to claim a redundancy lump sum payment in respect of Lay off from the Respondent.

“I give you notice of my intention to claim a redundancy lump sum in respect of lay off.

26 October 2022 to 16 January 2023 “

Part A notification of Lay off was not populated.

The Respondent did not respond to the Part B application within 7 days.

She was troubled when she subsequently noted an advertisement for a part time worker at the business on February 15, 2023, and sought advice.

She submitted that she may have signed a contract of employment but had not been furnished with a copy. On 22 March 2023, the Complainant wrote to the Respondent once more and signalled that she had not been invited back to work and would press on to the WRC with her complaints.

On 27 March 2023, the Complainant served a RP77 form on the respondent, where she claimed that she had been dismissed on grounds of redundancy through Lay off. This exhibited document is actually indecipherable outside of signature and date and reflective of a claimed lump sum in redundancy.

The Complainant confirmed that she did not receive the requested lump sum in redundancy and sought an order to that effect from the WRC.

I asked the Complainant to comment in response to the email of 19 February 2023

I note that Bernie Walsh is seeking redundancy. Bernie was not made redundant but was left go due to her protest outside my shop that was based in Carrigtwohill at the time along with texting me every hour until I blocked her number.

The Complainant confirmed that no words of dismissal were used by either party and no paperwork surrounding dismissal existed. She was merely seeking redundancy from Temporary Layoff.

The Complainant has not provided the requested TLO signed documents from her local Social Welfare Office, nor did she submit a record of her receiving job seekers benefit from 26 October 2022 as I would have expected as a sequential record of income in the immediate aftermath of Temporary Lay Off.

I revert to my request for documents from either Party from 15 April 2024. My analysis is emboldened.

I now require the following documents at both of your earliest convenience, please.

1 Any documents in existence from Court Cleaners pre-2017. (none remaining)

2 Any documents which activated the Temporary Lay Off (none submitted)

3 PRSI records for Ms Bernadette Walsh from October 2007 to May 2024. (Partial records, but not determinative)

4 Is the Business trading?  Yes.

5 Final Submissions from both parties no later than 15 days prehearing. (not adhered to).

6 Confirmation of Attendance by both parties within one week of receiving the invitation to attend the scheduled hearing.

The Complainant sought activation of her entitlement to a redundancy payment under the provisions of Section 12(1) (a) of the Redundancy Payments Act, 1967. She argued that her right shad been contravened under Section 7 of the Act when she was refused this payment.

Case Law ADJ 36510 Adam Truszkowski v B and G Barista ltd D18 Restaurant

RP 9 served post lay off and complainant not called back to work. Lump sum Payment in Redundancy awarded.

CA-000 56018-003 Terms of Employment (Information) Act, 1994

The Complainant submitted that she had not been provided with her Terms and Conditions of Employment, in writing from 2007 or when the business changed in 2017. She maintained that she may have signed a confirmation of transfer. She had been denied access to the respondent Human Resource package.

Ca-00056018-004 Public Holidays during Lay Off from 26 October 2022 to 24 January 2023

The Complainant has claimed 4 public holidays during the lay off period from 26 October 2022 to 24 January 2023.

31 October, 25 and 26 December ,2022 and January 1, 2023

She exhibited a calculation of €398.30 as owing, during the first 13 weeks of Lay off, based on a fluctuated wage stream and cited an analogous case Gerard Mc Evoy and Last Bus ltd ADJ 33580.

The Respondent has not engaged in a tangible response to the four claims or made an appearance to defend these claims at hearing.

I was keen to meet with the Respondent and patiently arranged to reschedule the April 2024 hearing, only to be once more met with a further nonappearance in June 2024.

It is clear from the CRO records that the business was registered as Business Name Individual on 26 October 2007 and carried a “normal “trading status on 8 February 2023.

CA-00056018-001 Payment of Wages Act, 1991

The Respondent has not filed a defence in this claim. The Respondent has not attended the hearing in this matter.

CA-00056018-002 Redundancy Payments Act, 1967

 The Respondent has not filed a defence in this claim. The Respondent has not attended the hearing in this matter.

The sole response on this claim was submitted by the Respondent in the context of seeking a Postponement, where Redundancy was denied.

CA-000 56018-003 Terms of Employment (Information) Act, 1994

The Respondent has not filed a defence in this claim. The Respondent has not attended the hearing in this matter.

Ca-00056018-004 Public Holidays during Lay Off from 26 October 2022 to 24 January 2023

The Respondent has not filed a defence in this claim. The Respondent has not attended the hearing in this matter.

I would like to preface my findings by making a brief statement on the status of the employment which has been presented to me in this case.

Of course, I would have much preferred to have met with both Parties early on in this case. However, I am satisfied that both Parties were offered repeated opportunities to ventilate their case both in person and in latter day by remote platform.

I have found the Respondent to be disrespectful towards a Statutory body, such as the WRC.  The Respondent has not engaged in the claims outside of a brief denial of dismissal and has actively avoided attending the hearings scheduled.

I can appreciate that the role of Employer carries its own challenges, however an Employer is also subject to the Laws of Ireland. I have found the approach of avoidance adopted by this Employer to be disrespectful to those laws and to this Tribunal.

I note that the Respondent has confirmed that she is now directly employed, however, it appears that her business is still trading.

I would advise the Respondent to reach out for training as an Employer in the event that she intends to take the operational reins at her business in the future.

In addition. I would urge the complainant in this case not to delay so long again before seeking the services offered by the WRC either through Advisory, Conciliation, Mediation or ultimately Adjudication.

Nobody should be expected to work in the chaotic environment described in this case.

Both Parties hold an element of responsibility for this, with the lions share resting with the Respondent.

CA-00056018-001 Payment of Wages Act, 1991

The claim in this case is listed on the complaint form to the WRC as payment of €760.50 in respect of 58.5 hours worked between weeks ending 28 October and 4 November 2022. I have already explained that a submitted overpayment of USC is not properly before me. I have jurisdiction to consider the claim for €760.50 as the complaint was received on 14 April 2023.

The Complainant has contended, in uncontested evidence by affirmation, that she was not paid for these periods, and she detailed and demonstrated the extraordinary lengths she pursued to realise these wages. However, she was not certain if she had been paid for week 43.

I have found very little reality to the payslips issued as I just cannot cross match a synchronicity of payments issued and received from September 2022 onwards. I acknowledge that payments were staged, phased and random in this employment and really the dynamics surrounding payment of wages seemed hopeless and not reflective of a viable commercial business.

It is regrettable that the complainant did not come to the WRC much sooner in this unfortunate saga.

The law on Payment of Wages is contained in Section 5(1) of the Act.

 Regulation of certain deductions made, and payments received by employers.

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

I must first decide if the wages claimed by the Complainant were properly payable to her as provided in Section 5(6) of the Act.?

I found that the Complainants memory had dimmed with time in this case. She was shaky and uncertain on her recollection of week 43.

However, based on her relentless pursuit of the wages associated with Weeks 43 and 44 and no visible record of the Respondent questioning that bill in any of the bundle of what’s apps exhibited or indeed in evidence before me, but rather mixed by a colourful collection of recorded intentions to pay.

I find that the sum of €760.50 constituted wages, which remained payable to the Complainant following her last day of work in October 2022.

I have not been able to resolve that payment was actually received due to the complete disparity between pay slips issued and bank deposits under the heading of wages.

I am encouraged by the synchronisation between the PAYE record dated 17 April 2023 and the Pay slip for week 44 which both yielded a 42 insurable weeks record of employment as €21,226.87 for 2022.

I find that based on the uncontested evidence of the complainant that she suffered an illegal deduction in wages through the nonpayment of €760.50 in respect of 58.5hrs of work.

I find the claim is well founded.

CA-00056018-002 Redundancy Payments Act, 1967

I have been asked to decide on whether the Complainant can claim a lump sum payment in redundancy by activation of Section 12 of the Act.?

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.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

This is a very difficult case for me to decide on in the absence of the Respondent and in the absence of contemporaneous records of Lay Off or at the very minimum a sighting of a continuous record of the Complainant being in receipt of Job seekers Benefit from October 26, 2022, to April 2023, when she found new work.

The case is distinguished from Truszkowski in that regard as the Respondent attended the hearing and the case turned more on the nature of the offer of re-engagement post lay off due to covid than the facts of this case, where the complainant stridently confirmed that it was her idea to seek TLO in October 2022.

In a TLO situation normally, Section 11 of the Act refers.

Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

I have canvassed, but do not have tangible evidence before me of the operation of Section 11(b). What I have is the Complainant as proposer of the motion for lay off and the respondent placed in the role of seconder of the motion.

I listened carefully to the complainant as she explained how she came to cease work on 26 October 2022, but I am troubled that the documentary evidence, which she assured me she could obtain, was neither obtained nor submitted to the WRC. This raises a clear doubt on her evidence.

The Respondent, on the other hand in her sole communication on the topic of the case on 19 February 2023

I note that Bernie Walsh is seeking redundancy. Bernie was not made redundant but was left go due to her protest outside my shop that was based in Carrigtwohill at the time along with texting me every hour until I blocked her number.

The Respondent has denied redundancy and points to having dismissed the complainant. I found that the Complainant had no record of having been dismissed by the Respondent. Instead, she just sought to be released from the uncertainties and instability of her conditions of employment which had markedly deteriorated and from where she states that she sought lay off in October 2022.

The Complainant has two breaks in service, one during Covid and the period at the centre of this claim. She had not made application under the Covid 19 related lay off payment (13 March 2020 to 31 January 2025) to offset the restrictions placed on employees through the temporary restrictions on claiming redundancy during lay off during the special period to September 30, 2021.

Operation of section 12 - emergency period

12A.—(1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

I will now look to the Law to guide my opinion in this case.

Section 7 of the Act provides for two routes to a redundancy payment.

1. dismissal for redundancy Section 7(2) scenarios refer St Ledger v Frontline Distributors Ireland ltd [1995] ELR 160 at 161.

2 Elevation from Lay Off or Short time to redundancy through efflux of time and lack of counteroffer of work by employer.

 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 yearsending 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,

The Complainant has pleaded access to route 2.  

Yet, her application or claim is bereft of contemporaneous documentation of the first step of Temporary Lay Off. I have noted the complainant’s insistence that her recollection surrounded a unanimous view between employer and employee of a lay off rather than resignation or dismissal, but she has fallen short on the requested proofs.

In the EAT case of

Don McDonagh (claimant/appellant) v Shoreline Taverns Limited trading as Daly's of Donore and Shoreline Taverns Limited trading as Daly's of Donore (respondents):

PW674/2012

The then Deputy Chair of the EAT, in the context of an appeal under Payment of Wages, identified a lay off period contrary to the complainant’s own submission, which was conceded by the Respondent as leading to a Redundancy in the Hospitality Industry.

In the instant case, the Complainant freely admitted that it was her idea to seek Temporary Lay Off. I am not convinced by her recollection of time in her evidence. I can apply some weighting to the chaotic nature of the employment; however, I find that I have insufficient evidence before me to allow me to conclude that the Respondent led out on the provisions of Section 11 of the Act on Lay Off.

I can accept that the Respondent stopped paying the Complainant during the 3rd week of October 2022, as addressed in the earlier claim, but I have no way of validating the period relied on by the complainant as a TLO October 26, 2022, to January 16, 2023.

It is of note that the complainant has not sought to activate Section 9(1) C of the Act

c) the employee terminates the contract under which he is employed by the employer … in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer ‘s conduct.

Instead, I am fixed with whether the complainant is correct in activating Section 12 in pursuance of a Redundancy.?

I find that she is mistaken.

Taking the complainants evidence and submissions into consideration, I find a significant gap in the story by the omission of key documents to reflect TLO from either the complainant file or her local social welfare office.

It is the shortfall in the undertaking given at hearing which has stayed with me.

The Complainant was on notice that her Redundancy had been denied by her Employer, albeit from afar and without the protection of oath/ affirmation. She denied that she had been part of a Protest or that she had been dismissed.

None the less, from the evidence before me, today, I find a lack of clarity in exactly what happened between the Respondent and the Complainant prior to October 26, 2022. I have found the Complainant very vague in her evidence and the respondent hopelessly avoidant of scrutiny.

However , based on the balance of probabilities and a protracted search for documentary evidence of lay off and subsequent income stream , which has amounted to a cul de sac , I must decide that while I accept that the Complainant did suggest her own temporary lay off , I cannot find a crystallisation of that conversation into an agreement on TLO and the complainant appears to have drifted off from the employment into a rudderless place . she has not proved Temporary Lay Off.

In the absence of either foundation document led by the Employer on TLO or evidence validated by documents to uphold TLO on 26 October 2022, I cannot find that the Complainant was ever placed on Temporary Lay Off, which renders her subsequent actions of RP9 and RP 77 moot.

I am mindful here of A Chef v A Community Services Provider ADJ 25512 in early 2020, my colleague Adjudicator held that a presumption of dismissal was precipitous as both parties had more to discuss before that final stage.

I have enormous sympathy for the complainant and where she found  herself in an unmanaged workplace, where she somehow appeared to adopt the role of a Turkey seeking to vote for Xmas, however, I   cannot safely conclude that the Complainant was placed on Lay off by her employer on 26 October 2022. She has not relied on Section 11(2) on short time.

Therefore, she cannot presume a clear entitlement to the provisions of Section 12 as a result.

I find the claim for a lump sum payment in Redundancy is not well founded.

CA-000 56018-003 Terms of Employment (Information) Act, 1994

I have not received carriage of a written statement of terms of employment from either party. This consists of a continuous contravention of Section 3 of the Act. A set of written terms may have assisted both Parties in this case.

I find the claim to be well founded.

CA-00056018-004 Public Holidays during Lay Off from 26 October 2022 to 24 January 2023

The Organisation of Working Time Act 1997 at Section 21 and Third Schedule makes provision for payment of public holidays during the first 13 weeks of Temporary Lay Off.

As I have already decided that I cannot establish that the complainant was placed on Lay off, I must find that the complainant has no statutory right to claim the 4 bank holidays she has relied on. Mc Evoy distinguished.

Neither can I find that she has rights under cessation in Section 23 (2) as I cannot determine if she actually left the employment.

I find the claim not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00056018-001 Payment of Wages Act, 1991

I have established that the Respondent contravened Section 5(1) of the Act and the complaint is well founded.

My powers for redress are found in Section 6

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015]

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

I order the Respondent pay the Complainant €760.50 in reasonable compensation for the contravention of Section 5 of the Act. This amount is subject to statutory deductions.

CA-00056018-002 Redundancy Payments Act, 1967

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 the claim is not well founded. The Complainant is not entitled to the provisions of Section 12 of the Act.

CA-000 56018-003 Terms of Employment (Information) Act, 1994

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in accordance with Section 3 of that Act.

I find the claim is well founded. In accordance with my powers under Section 7 of the Act, I order the Respondent to pay the Complainant the maximum compensation permitted under the Act, €1977-88 as just and equitable compensation for the continuous breach of Section 3 of the Act.

Ca-00056018-004 Public Holidays during Lay Off from 26 October 2022 to 24 January 2023

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in accordance with Section 21 of that Act.

I have found this claim not well founded.

Payment of Wages, Redundancy lump sum, Terms of Employment and Annual Leave