ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049956

Parties:

Complaint:

Date of Adjudication Hearing:  30/08/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 39 of the Redundancy Payments Acts 1967-2022 to the Workplace Relations Commission (hereinafter ‘WRC’) on 30th January 2024.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard in Lansdowne House on 30th August 2024.  The Complainant attended with her niece.  A Representative from Peninsula appeared on behalf of the Respondent.  The Respondent is not of capacity and his wife and daughter attended on his behalf.  His wife has enduring power of attorney to manage all of his affairs as his Personal Representative.  Vouching including a completed RP77 Form and final payslips to the Complainant were furnished.  This complaint was heard in public and the Parties were made aware that their names would be published within this decision.  The evidence was uncontested and this complaint was conceded.  Decisions upholding non-payment of statutory redundancy complaints by two other employees have issued in ADJ-00049905 and ADJ-00049915.  This complaint was referred within 12 months of the termination of the Complainants’ employment by reason of redundancy within time.

Background:

The Respondent was a sole trader who operated an Accountancy business and had two offices.  Owing to ill-health he had ceased trading and failed to discharge the Complainant’s statutory redundancy lump sum payment.  By way of appeal, the Complainant sought a decision from the WRC confirming her entitlement to same for the purposes of seeking payment from the Redundancy Payment Scheme operated by the Department of Social Protection.  This complaint was conceded.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent Accountant as a Secretary on 2nd October 1979.  She initially held a full-time position until 2001 when her hours were reduced to 16.5 hours per week and she earned €385 gross per week on the termination of her employment.  It is common-case that the Respondent’s Accountancy business had operated successfully until he became unwell in 2020 and was unable to continue working.  The Complainant was placed on lay-off from 1st October 2022.  Following an undisputed redundancy process, her employment was terminated by reason of redundancy by notice in writing on 24th February 2023.  Having accrued over fifteen years’ continuous service, she was entitled to eight weeks’ statutory minimum notice giving her a termination date of 21st April 2023.  In December 2023, the Complainant received payment in lieu of her statutory minimum notice but has not received her redundancy lump sum payment to date.  Subject to Department of Social Protection calculation, this represents a significant payment of circa €33,633.60 (factoring in the non-reckonable period of lay-off between 1st October 2022 and 24th February 2023).  The Complainant completed a RP77 Form and furnished it to the Respondent’s Personal Representative.  She was informed that there were no funds to discharge her redundancy lump sum payment.  The Complainant has been most understanding of the Respondent and his family’s difficulties and displayed compassion towards them at the hearing.

Summary of Respondent’s Case:

The Respondent’s wife and daughter outlined a very challenging and stressful time for the family.  His wife confirmed that she has enduring power of attorney to manage all of his affairs as his Personal Representative.  Having run a successful Accountancy business from two offices for many years, the Respondent became unwell in 2020 and was unable to continue providing services to his clients.  Unfortunately, a number of clients failed to discharge their fees and the business became insolvent.  The family had unsuccessfully tried to sell the business.  As the Respondent was a sole trader, winding-up the business had been complicated by his incapacity and the family had to continue the business for operational reasons.  They also had to discharge the business debts and liabilities from personal savings and funds.  They were apologetic for finding themselves in the position whereby they were unable to discharge the Complainant’s statutory redundancy lump sum especially given her lengthy loyal service.  They had discharged her pay in lieu of notice from a client’s payment in December 2023 and would have paid her redundancy lump sum if they could.

Findings & 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, (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.  An employee is entitled to two weeks’ gross pay for each year of service pro-rata plus one week up to a ceiling of €600 with defined breaks in reckonable service within the last three years disregarded.  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…” (remainder irrelevant)

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 credible and unrefuted evidence as confirmed with vouching documentation, I find on the balance of probabilities that she meets all the requisite criteria for redundancy as outlined above.  I am satisfied that she was given notice of termination of her employment on 24th February 2023 and allowing for her entitlement to a statutory minimum notice period of eight weeks, her employment terminated on 21st April 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 Act 1967 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions.  Based upon the aforesaid reasoning, I allow this appeal and find that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967-2022 in accordance with the following particulars:

Gross Weekly Pay:  €385

Date of Commencement of Employment:  2nd October 1979

Layoff Period:  1st October 2022 until 24th February 2023

Date of Notice of Termination:  24th February 2023

Date of Termination of Employment:  21st April 2023

Dated:   11/09/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Redundancy Acts 1967-2022 - Non-payment of statutory redundancy