ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051478
Parties:
| Complainant | Respondent |
Parties | Laura Brennan | Caphe Ltd |
Representatives |
| Yung Truong, Company Director. |
Complaint:
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-00063146-001 | 29/04/2024 |
Date of Adjudication Hearing: 02/07/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment. The Complainant herein qualifies.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
The facts herein include the operation of the RP9 process as follows:
An Employee may be laid off or put on short time in response to a change in circumstances which needs to be temporarily addressed by the Employer. An Employer can lay a person off for a temporary period and must give notice and reasons justifying this step. The Employer can also put the Employee on short time (which is defined as a regime where an employee’s hours of work are reduced to less than half of what is normal).
Part A of Form RP9 is usually served by the Employer on the Employee as notice of temporary short time or lay off.
Ideally, a Contract of Employment should reference the entitlement to put an employee on lay off or short time. Otherwise, it is not clear that an Employer can deduct wages per the Payment of Wages Act.
If an employee has been on short time (less than half wages), or has been put on lay off for a period of four or more consecutive weeks, or for a period of six or more weeks within a period of thirteen consecutive weeks, then in either of those two cases the employee can give Notice in writing of the intention to claim redundancy (this is exercised usually under part B of the RP9 Form). This may also be sought not later than four weeks after the cessation of the lay off or short time. The Employee must give the employer the notice required or specified in the Contract of Employment or if none exists then must give at least one week’s Notice of intention to claim Redundancy. In such circumstances the Complainant is entitled to Statutory Redundancy but loses the right to Statutory Notice.
When you claim for redundancy in a lay-off situation, you are stating that you believe that your employer cannot offer you work and that you want to be released from your contract and wish to receive your redundancy payment and want to look for new work.
There can be no doubt that the Employer has a right to Counter this application but Part C of the RP9 very clearly states that any such counter notice must be in writing and must be given within seven days of service of the employees notice. Also, the Counter Notice should indicate that there will be a commencement of full-time work within the next four weeks of the date of service of the Complainant’s Notice.
A person on lay off may apply for jobseeker’s allowance. The person on short time may be entitled to short time work support for those days he or she is laid off.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate at Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of April 2024. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, do swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the extensive written submissions and documents provided by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held :
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant provided me with additional documentation on the date of the hearing. This was supplemental to documentation on file before the date of hearing. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent. The Complainant alleges that she is entitled to Redundancy in circumstances where she was initially laid off and then the position to which she was invited to ultimately return to, was significantly different to one she had been laid off from. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be established by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by one of the Company Directors. On the hearing day, the Respondent witness provided me with a comprehensive package of documents that she was relying on in this matter. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent was questioned as appropriate by the Complainant. The Respondent rejects that there has been a Redundancy and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant came to work with the Respondent company (a restaurant called “The Brew”) in or around the 12th of July 2019. The Complainant is a chef working in pastries, starters and mains. The Complainant’s position herein was part time as she is also a mother, and I understand therefore that the Complainant worked around 21 to 24 hours a week. In line with her needs to be available for children at weekends, I understand that the complainant mainly worked during school hours. My sense is that the Complainant was happy in this place of work. Certainly, the Respondent Director had no complaints about the Complainants work and valued her as an employee. I understand that the Respondent Director and her husband came to own an alternative premises across the road to which she intended moving this Restaurant/Café. The Complainant was aware of this plan and had no difficulty with it as it appears that she would be trading like for like. Indeed, I sense that the proposed new premises would be an upgrade. The move however was not to be seamless, and unfortunately some planning issues arose with the new premises such that there was to be a delay in moving into, and opening a new café/restaurant in the premises. On the 18th of December 2023 for reasons not fully explained, the Respondent Employer decided to put its staff on Lay Off pending a move to the new premises. I must assume that the lease on the old premises had expired. In any event the fact remains that the Complainant was put into a position where she had to go on Lay Off. The Complainant applied for and was in receipt of the social welfare entitlements for someone in her position. I think that there is little doubt that the Respondent was putting her key members of staff on Lay Off in circumstances where she particularly wanted to retain her staff for the new enterprise she was hoping to open up in due course. I think it is fair to say that that dream ultimately went on the backburner by reason of the planning difficulties which meant that a gym was, in fact, put into the premises and not a restaurant. Whatever the long-term plans now were, the anticipated quick move from one premises to another with Employees retaining core duties and tasks was no longer on the table. To be fair to the Respondent, she did pivot. In place of an indoor restaurant/Café with seating the Respondent proposed putting an open-air coffee truck outside the Gym. The Respondent managed to get this enterprise up and running towards the end of February 2024. Unfortunately, the uncertainty around this venture and indeed the nature of the proposed job did not appeal to the Complainant who as of the 15th of January was entitled to call time on this employment and seek her redundancy as she had as of the 15th of January 2024 spent four consecutive weeks on Lay Off. As I understand it, the complainant had started the process of looking for her Redundancy on the 19th of January 2024. I am satisfied that the Employer did not thereafter give Notice to the Employee that her position would be restored to her within the next four weeks. I do appreciate that the Respondent was all the time trying to get her Coffee trailer option up and running and in fact did manage to get this done a short time later (before the end of February). However, even taking this into consideration, the position that the Respondent was offering was significantly different to the one of chef held by the Complainant heretofore and the Complainant simply did not want to take a step backwards in her career in hospitality. By operation of law the Complainant was entitled to look for her Redundancy at the end of four consecutive weeks on Lay Off with no foreseeable prospect of returning to her full-time position.
I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 12th of July 2019 The employment ended: 19th of January 2024 Gross weekly wage : €330.00 The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 applies. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00063146-001 - I accept that the Complainant’s job was made redundant and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014. I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 12th of July 2019 The employment ended: 19th of January 2024 Gross weekly wage : €330.00
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Dated: 16th September, 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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