Complainant

Respondent

Parties

Wendy  Dutton

Pizza Shack Limited (amended at the hearing)

Representatives

Frank Murphy Solicitors

 Jones Magee Solicitors

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-00063353-001

08/05/2024

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

CA-00063353-002

16/05/2024

The Complainant gave her evidence on affirmation. It was her evidence that she commenced work on 22 January 2016 and was given her notice on 18 January 2024 by the Respondent.

It was the Complainant’s case that she was due 21 days of annual leave, which amounted to a total sum of €2,799.93.

Mr Ian Robson, a director of the company, gave evidence on behalf of the Respondent. The employer's name was corrected to Pizza Shack Limited.

CA-00063353-001 – Redundancy

It was the Complainant's evidence that she began working on 26 January 2016, and in 2017, she became the manager. On 18 January 2024, the Respondent closed the doors of business, stating that he could no longer afford to keep the doors open. She was tasked with. Telling the staff of this development. Ask that point. Mr Robson explained to her that if the company went into liquidation, the government would pay for her redundancy, but if he could find a buyer, He would pay the redundancy, but it might take a little longer.

She asked for a letter for her travel insurance due to the cancellation of a holiday. In this letter, Mr Robson stated that she was laid off. When she inquired further, she was told that she was layoff laid off because the Respondent was selling the business. She disputed this when it was only when she requested the letter confirming her redundancy or when she was told that she was laid off.

The Complainant was cross-examined and accepted that the Respondent had done everything possible to save the business.

It was put to her that when she was told that the business was going to be sold but she refused to go with the new employer. She denied this.

CA-00063353-002- Organisation of Working Time Act

In relation to her complaint under the Organisational Working Time Act, it was the Complainant's evidence that she was not given her full annual leave entitlement. It was the Complainant’s evidence that her annual leave would roll over from one year to the next.

She accepted under cross examination that she did go on holiday in August 2023 for 3 weeks.

It was the Respondent’s case that the company's financial position was precarious. It was his evidence that despite investing his personal money, there was no money in the business to discharge its debts. Mr Robson gave evidence that he was attempting to sell the business, and it was favourable to retain the employees.

CA-00063353-001 – Redundancy

In response to the redundancy complaint. It was Mr Robson's evidence that he did not believe. That redundancy situation arose because she was offered alternative employment.

Mr Robson was asked when he first spoke to the Complainant about closing the business. It was his evidence that in January 2024, he spoke to with the Complainant. At that time, he decided to close the business for a week to consider his next step. He asked her to let the other staff know the business was closing. There was some discussion around the liquidation of the Respondent company, but Mr Robson admitted there was very little communication with the Complainant.

Upon inquiry, the Respondent was asked on what date the business closed. It was Mr Robson's evidence that it closed on 18 January 2024. Mr Robson continued to deny that the Complainant was made redundant. When asked what the Complainant’s current position was, she said she was on layoff.

CA-00063353-002- Organisation of Working Time Act

In response to the claim under the Organisation of Working Time Act 1997. It was the Respondent’s evidence that the Complainant took annual leave in October 2023 and again in August 2023 and was paid her full salary during the three months the business was closed from November 2022 to January 2023.

CA-00063353-001 – Redundancy

Section 11 of the Redundancy Payments Act 1967 provides:-

“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.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.”

Section 15 of the Act provides for disentitlement to redundancy payment for refusal to accept alternative employment.

Having carefully considered the evidence before, I find the Complainant’s position was made redundant on 18 January 2024 where the Respondent was no longer open for business. The argument put forward by the Respondent that she remains on lay off and due to her refusal to transfer to a new owner, is simply farcical.

Firstly, at the date of the hearing which was 6 months after the closure, the Respondent was still the employer and there was no other employer. Secondly, lay off is a temporary measure where after 4 consecutive weeks an employee is entitled to claim redundancy.

I find that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014.

CA-00063353-002- Organisation of Working Time Act

It is first necessary to consider Section 41 (6) of the Workplace Relations Act 2015 where Complainant’s evidence that that her annual leave entitled was carried over annually with the additional complaint received by the Workplace Relations Commission on 16 May 2024.

Section 41 (6) provides: -

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

There was no application to extend time. Consequently, the time is limited to the period of six months beginning on the date of the contravention, i.e., 15 December 2023. Any complaint outside of this time limit cannot be considered.

There were no records of working time and in particular, annual leave produced by the Respondent as is a requirement under Section 25 of the Act. While it is accepted the Respondent gave evidence of annual leave being taken in 2022 up to August 2023, these periods are outside the period of contravention. No evidence was presented of the period from December 2023 - January 2024 and on this basis, I find the complaint is well founded.

CA-00063353-001 – Redundancy

I find that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014, in accordance with the following details:

Date of commencement of employment: 26 January 2016

Date of notice: 18 January 2024

Date of termination of employment: 15 February 2024 (to take into consideration her minimum notice period)

Gross weekly pay: €400

Hours of Work: 25 Hours per week

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00063353-002- Organisation of Working Time Act

Section 27(3) of the Organisation of Working Time Act 1997 provides:

 “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

I direct the payment of a sum of €1,000 in compensation to the Complainant, as this is just and equitable in all the circumstances, where no records were produced by the Respondent.

I find this complaint to be well-founded.

Organisation of Working Time Act, Redundancy