Complainant

Respondent

Parties

Audrey  Hastings

House McGrath Ltd

Representatives

  Self-Represented

 Ms Carla McGrath, Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062629-001

06/04/2024

The Complainant commenced employment in a sales capacity with the Respondent on 21 September. She worked 15 hours a week at a rate of €18 per hour. Her employment was terminated on 15 January 2024 by way of redundancy. The Complainant submits that she did not receive her redundancy payment under the Redundancy Payments Act 1967 (“the Act”).

The Respondent submits that the funds were just not in the company to pay the Redundancy sum due to difficult trading conditions.

The Complainant gave evidence of her start and finishing date but said she was denied the redundancy sum when her employment was terminated, despite asking the Respondent to comply with the Act. Two persons out of a workforce of five were made redundant at the relevant time. The Complainant accepted that there was reduction of approximately 50% in her hours/pay in the weeks  prior to the Redundancy.

The Respondent in evidence gave an account of the financial difficulties experienced by the company and outlined the sacrifices that both herself and her family had to make to keep the business afloat. She said that the other person who was made redundant at the material time did not pursue a claim and she was surprised that the Complainant had made a complaint. The Respondent , after examining wage slips produced by the Complainant at the hearing, stated that there was reduction of approximately  50% in the Complainant’s hours for the months of November and December 2023.

CA-00062629-001: Redundancy Payment:

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states 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,

Based on the uncontested evidence of the Complainant I find that she was made redundant under Section 7 (2)(a). I allow the Complainants appeal and I award her statutory redundancy on the following basis. Section 4(1) of the 1967  Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”

Schedule 3 (16) of the Act sets out the formula for calculation where thee has been a variation in hours.

(i) In the case of an employee who is paid wholly or partly by piece rates, bonuses or commissions (being piece rates, bonuses or commissions related directly to his output) and in the case of any other employee whose remuneration varies in relation to the amount of work done by him, his normal weekly remuneration shall be taken to be the amount as calculated in accordance with subparagraph (ii).

(ii) For the purposes of subparagraph (i) normal weekly remuneration shall be calculated by dividing the remuneration to be taken into account in accordance with subparagraph (iii) by the number of hours ascertained in accordance with subparagraph (vi) and multiplying the resulting hourly rate by the normal weekly working hours of the employee concerned at the date on which he was declared redundant.

(iii) The remuneration to be taken into account for the purposes of subparagraph (ii) shall be the total remuneration paid to the employee concerned for all the hours worked in the period of 26 weeks which ended 13 weeks before the date on which the employee was declared redundant, adjusted in respect of any variations in the rates of pay which became operative during the period of 13 weeks ending on the date on which the employee was declared redundant.

Neither  the Complainant nor the Respondent submitted relevant documentation to be relied upon in advance of the hearing , however, I am satisfied that allowing for the Christmas period of 2023, there was a reduction in hours of approximately 50% prior to the redundancy date. In the 26 weeks prior to the redundancy date, which allows for the variation in reduced salary hours for the final seven weeks, I find, based on the evidence I heard,  that it is just and equitable under the formula in section 16 of Schedule 3 of the Act that the Complainant worked 285 hours for 19 weeks,  giving a total of €5130 and she worked the remaining seven weeks on reduced hours at  €135 per week giving a total of €945. When this is averaged out, I am satisfied that the correct rate over the period for the calculation of the weekly remuneration, taking into account the variation in hours, to be €234 per week.

CA-00056682-001: I allow the Complainant’s appeal and , subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, she is  entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis:

Date of Commencement: 21 September 2021

Date of Reckonable Service for Redundancy Payment Ceasing on: 15 January 2024

Gross Weekly Wage: €234.

Redundancy Payments Acts.