ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042849
Parties:
| Complainant | Respondent |
Parties | Daria Zielinska | Cavtat Taverns 2 Ltd Oak Cafe Bar |
Representatives |
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Complaint(s):
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-00052909-001 | 21/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00052909-002 | 21/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052909-003 | 21/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052909-004 | 21/09/2022 |
Date of Adjudication Hearing: 14/01/2025
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complains.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses presents. The legal perils of committing Perjury were explained to all parties.
The matter was heard by way of remote hearing on 14 January 2025, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
Background:
The Complainant commenced employment with the Respondent in July 2023 working 40 hours plus overtime per week, working as a chef and doing other various tasks. She was paid €350 per week gross per week. A complaint form was received by the WRC on 21 September 2022. The Respondent did not attend the hearing. I am satisfied that the Respondent was on notice of the hearing. |
CA-00052909-001 Complaint under section 39 of the Redundancy Payments Act, 1967.
Summary of Complainant’s Case:
The Complainant gave evidence on affirmation at the hearing. The Complainant explained that she was laid off on 16 March 2020 due to the Covid 19 pandemic restrictions. The next communication she received from the Respondent was in July 2021, in which she was informed that it was planned that the restaurant world open in a month. However, the re-opening was continually postponed. In February 2022, the Complainant contacted her manager and asked that she be paid her redundancy money. She heard nothing back from her [now new] manager until 8 April 2022, when he asked her if she would like to return to work. The Complainant did not respond to this question and instead presented an RP9 Form in person to the manager. He said he would look into it. Two weeks later she sent an RP77 Form to the manager; she heard nothing back. Sometime later the Complainant presented another RP77 Form to her manager by hand. The Complainant stated that she was advised to give the Respondent some time to get matters sorted and as she was about to do some travelling, she waited until she came back and sent a complaint form to the WRC on 21 September 2022. The Complainant believes she should get her redundancy payment. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
Section 24 of the 1967 Act states: “Time-limit on claims for redundancy payment. 24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment— (a) the payment has been agreed and paid, or (b) the employee has made a claim for the payment by notice in writing given to the employer, or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director Generalunder section 39. (2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum. (2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfiedthat the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled. (3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General— (a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and (b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director Generalat his discretion considers reasonable having regard to all the circumstances.” From the uncontested evidence of the Complaint I find that she was never put on notice of a redundancy in any manner nor did her employer make any attempt to regularise the situation as they are required to so do. I find the Complaint’s employment ended on 16 March 2020. She first sought a redundancy payment from the Respondent in February 2022, a period of less than 104 weeks from when she was laid off. She did not receive any response from the Respondent until the following April and this was only to ask the Complainant if she wished to return to work. In the circumstances I find the Complainant is due a redundancy lump sum from the Respondent.
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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.
I allow the Complainant’s appeal. |
CA-00052909-002 Complaint under section 12 of the Minimum Notice & Terms of Employment Act, 1973.
Summary of Complainant’s Case:
The Complainant stated that she was never paid her notice entitlements. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
The Complainant’s employment ended on 16 March 2020 and a complaint form was received by the WRC on 9 September 2022. Section 41 of the 2015 Act states: (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. (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. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. Having regard to the above, I am satisfied that the Complainant’s complaint was presented to the Workplace Relations Commission outside of the relevant statutory time limit provided. A failure on the part of a Complainant to present a complaint in time deprives the me of jurisdiction to hear the claim.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have no jurisdiction to hear the complaint. |
CA-00052909-003 Complaint under section 27 of the Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The Complainant put forward that she did not receive her annual leave entitlements. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
The Complainant’s employment ended on 16 March 2020 and a complaint form was received by the WRC on 9 September 2022. Section 41 of the 2015 Act states: (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. (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. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. Having regard to the above, I am satisfied that the Complainant’s complaint was presented to the Workplace Relations Commission outside of the relevant statutory time limit provided. A failure on the part of a Complainant to present a complaint in time deprives the me of jurisdiction to hear the claim. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have no jurisdiction to hear the complaint. |
CA-00052909-004 Complaint under section 27 of the Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The Complainant put forward that she was due Public Holiday entitlements. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
The Complainant’s employment ended on 16 March 2020 and a complaint form was received by the WRC on 9 September 2022. Section 41 of the 2015 Act states: (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. (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. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. Having regard to the above, I am satisfied that the Complainant’s complaint was presented to the Workplace Relations Commission outside of the relevant statutory time limit provided. A failure on the part of a Complainant to present a complaint in time deprives the me of jurisdiction to hear the claim. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have no jurisdiction to hear the complaint. |
Dated: 12th March 2025.
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Redundancy, notice, out of time. |