ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038791
Parties:
| Complainant | Respondent |
Parties | Anna Gray | 4Ways Roundabout Limited, 42, Kilkee House, Clare Village, Malahide Road, Dublin 17. |
Representatives |
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Complaints:
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-00049771-001 | 12/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00049771-002 | 12/04/2022 |
Date of Adjudication Hearing: 28/11/2024
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).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.
The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to 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) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was to be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 12th of April 2022.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on her oral account of what has happened herein. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant alleges that she was made Redundant after over six years of employment. Her Statutory Redundancy was never paid. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained 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.
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Summary of Respondent’s Case:
The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 8th of October 2024 - and posted to the Registered Office for the Respondent Company. I understand that a Ms Evita Hovorun communicated with the Offices of the WRC in advance of the hearing. This lady might be one of the Company Directors. Her position as regards the complaints herein has not been made known to me as Adjudicator.
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Findings and Conclusions:
The Complainant was employed in from the 28th of February 2014. After a lawful Transfer of Undertaking occurred in and around July of 2020, the Complainant’s employment and service transferred to the Respondent Company. The Respondent company did not honour the Complainant’s terms and conditions of employment and in a meeting on the 8th of October 2020 the Employer (in the person of Evita Hovorun) advised that that the hours the Complainant used to work were no longer available. In consequence of this, the Complainant was therefore made Redundant. It has taken a considerable period of time to get this matter before the WRC as the Complainant issues workplace Relations Complaint Form against the trading name and/or the Company Director. The correct Employer was named in a workplace Relations Complaint form which issued on the 12th of April 2022. As noted, the Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause. I am satisfied that the Complainant has shown reasonable cause herein. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. I am satisfied that the complainant herein is an eligible Employee I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence The employment started: 28th of February 2014 The employment ended: 8th of October 2020 Gross weekly wage : €270.00 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 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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-00049771-001 - The Complaint is well founded. I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence The employment started: 28th of February 2014 The employment ended: 8th of October 2020 Gross weekly wage : €270.00
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00049771-002 – This Complaint is out of time.
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Dated: 10-02-2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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