RPD229

1. Appeal Of Adjudication Officer Decision No(S) ADJ-00035396, CA-00046555-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 28 July 2021 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place in a virtual setting on 11 October 2022. The following is the Determination of the Court:




DETERMINATION:

This is an appeal by Anna Mikolajczyk against the decision of an Adjudication Officer ADJ-00035396 given under the Redundancy Payments Act 1967 (‘the Act’).

The Adjudication Officer found that based on the evidence submitted at the first instance hearing that it was unclear if the Complainant’s employment met the requirements of Section 4(1)(a) of the Act regarding social insurance contributions to enable her to qualify for redundancy and in the absence of such evidence Ms Mikolajczyk’s claim for a redundancy payment from her former employer, Monika Kowalska t/a Monika’s Hair Studio, was not well-founded. Ms Mikolajczyk has appealed that decision to the Court.

The parties are referred to in this Determination as they were at first instance. Hence, Ms Mikolajczyk is referred to as “the Complainant” and Monika Kowalska t/a Monika’s Hair Studio” is referred to as the Respondent.

Summary of Complainant’s Case:

The Complainant worked for the Respondent as a hairdresser from 15 March 2017 to the 30 April 2021.

The salon closed in March 2020 due to the Covid-19 pandemic and the Complainant was advised to avail of social welfare payments. In May 2020, after the first lockdown the Complainant was advised by the Respondent that it was unlikely that the salon would reopen, but a firm decision was not yet made. The salon did open up, on and off for a number of days. In November 2020, the salon closed again when the country went into another lockdown and the Complainant once again availed of social welfare payments.

In late January 2021, the Respondent told the Complainant that she had decided not to reopen the business after the lockdown and would instead work from home. She advised the Complainant that her position would be made redundant and that she would receive a redundancy payment but should remain on social welfare until the end of February. After that initial conversation, the Complainant made various attempts to engage with the Respondent via text messages to clarify matters relating to her redundancy payment. The Respondent did not respond.

The Complainant went to citizens information, which advised her to send the Respondent a RP50 form. She did that but heard nothing further. She referred the matter to the WRC on 6 October 2021.

After the complaint was submitted to the WRC, the Respondent accepted in correspondence to the WRC that she agreed to pay the Complainant a redundancy payment of €1630 but wasn’t able to pay at that time due to financial pressures. After her initial letter, the Respondent sent another letter to the WRC in March 2022, changing her position and instead stated that the Complainant had asked to be dismissed.

The Complainant submits that the Respondent agreed to pay her a redundancy payment. The Respondent terminated her employment on 30 April 2021.

Summary of Respondent’s Case:

In January 2021, the Respondent had to close the premises that she rented due to the Covid 19 pandemic. The Respondent did not know how long the lockdown would last. She advised the Complainant that she did not know what she was going to do but that she would inform the Complainant immediately that she had made a decision.

In May 2021 she contacted the Complainant to advise her that she planned to reopen the salon but needed more time to find a suitable premises that she could afford. The Complainant was not happy about that decision as she thought the salon would not reopen and she had already planned to open up her own business. The Respondent spoke with their accountant who informed her that if an employee requests to leave the workplace she is not entitled to any payments.

The Complainant’s contract ceased on 30 April 2021 due to her own decision not to return to work.

The Complainant made contact again on 16 August requesting that she be fired from her job as social welfare was after her. The Respondent informed her that her employment had ceased the previous April 2021. The Complainant was confused as to why her contract had ended on 30 April 2021 and why she was still waiting for her P45. The Respondent advised the Complainant to access the revenue website. The Complainant subsequently contacted her again to ask when she would receive a redundancy payment. Shortly after that the Complainant lodged a complaint with the Workplace Relations Commission.

The Relevant Law

Section 7 of the Redundancy Payment Act sets out a general right to a redundancy payment 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,
  
  (5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.
  
  

Deliberation and Findings

As set out above, the Adjudication Officer decided that the Complainant was not eligible for a statutory redundancy payment as no evidence was provided to him that the Complainant met the requirements of Section 4(1) regarding social insurance contributions to enable her to qualify for redundancy and in the absence of such evidence, he disallowed the Complainant’s appeal. The Complainant provided the Court with correspondence from the Department of Social Protection setting out her social insurance contributions for the period from 2007 to 2021. Having reviewed the documentation, the Court is satisfied that the Complainant meets the requirements of section 4(1) of the Act.

The parties represented themselves at the hearing. The Complainant was assisted by an interpreter. The parties confirmed to the Court that they wished to rely solely on the oral and written submissions made at the hearing. Both parties confirmed they did not wish to provide any further testimony and that each was satisfied with the accuracy of their submissions made to the Court at the hearing.

In assessing the oral and written submissions made at the hearing, the Court was struck by a number of inconsistencies in the submission made by the Respondent.

The Respondent accepts that she notified the Revenue Commissioners that the Complainant’s employment terminated on 30 April 2021. The Respondent told the Court that the employment relationship was terminated at the behest of the Complainant who wanted to leave and open her own business. She asserts that the Complainant was seeking a redundancy lump sum payment before any final decision had been made about the future of the business.

Notwithstanding that the Respondent notified the Revenue Commissioners that the employment relationship terminated on 30 April 2021, the Respondent told the Court that she contacted the Complainant in May 2021 to say that she was planning to reopen her salon but needed more time to find a new premises. There is a clear inconsistency in the Respondent’s position about the Complainant’s employment status during this period. The Respondent provided no explanation to the Court regarding why she contacted the Complainant in May 2021 about reopening the salon, in circumstances where she had notified Revenue that the Complainant’s employment had terminated in the previous month.

The Respondent asserts that the Complainant was not happy to hear that the salon was reopening, as she wanted to open her own business. The Complainant emphatically rejected this assertion. The Complainant told the Court that she made various attempts to engage with the Respondent to clarify matters relating to her employment, but the Respondent did not respond. Furthermore, she only found out that her employment had been terminated following a text message in August 2021. The Respondent acknowledges that the Complainant was confused and uncertain about when her employment terminated.

After a complaint under the Act was lodged to the WRC, the Respondent accepts that she wrote to the WRC in October 2021 confirming her intention to pay the Complainant a redundancy lump sum payment amounting to seven weeks wages. She asserts that she had used Google translate to assist her with drafting the letter as her English was not good, and her intention was to convey the amount that she would pay to the Complainant in the event she had decided to close the business. The Respondent told the Court that she did not know how she came up with calculations for seven weeks pay as set out in her email to the WRC in October 2021. Having reviewed that email correspondence the Court does not find the Respondent’s explanation to be a credible one.

The Respondent acknowledges that she had to close the premises that she rented due to the Covid-19 pandemic. The Respondent acknowledges that she terminated the Complainant’s employment in April 2021. While the Respondent refuted the assertion that she changed her position in relation to paying the Complainant a statutory redundancy payment, the Court was struck by inconsistencies in her submission about how the Complainant’s employment came to an end in April 2021, and her subsequent communications with the WRC when she confirmed her intention to pay the Complainant a redundancy lump sum.

For the purposes of the Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact the employer has decided to carry on the business with fewer or no employees or the fact that the employer has ceased or intends to cease, to carry on that business in the place where the employee was so employed.

In all the circumstances the Court finds that the Complainant did not resign her employment on 30 April 2021. The Court finds that the true position was that the Complainant was made redundant on that date. This finding is supported by the Respondent’s correspondence with the WRC in October 2021 regarding her intention to make a redundancy payment.

Based on the submissions outlined to the Court at the hearing, the Court finds that the Complainant was dismissed by reason of redundancy on 30 April 2021 when the Respondent ceased to carry on the business in the place where the Complainant was so employed and decided to carry out the business from her home with no employees.

It is not disputed by the Respondent that the Complainant commenced employment in and around 20 March 2017, that the employment terminated on the 30 April 2021 and that in October 2021 the Respondent indicated her intention to make a redundancy payment. It is not disputed that the Complainant had the requisite 2 years’ service entitling her to a redundancy payment under the Act, in circumstances where her role was redundant.

Accordingly, the Court finds that the Complainant is entitled to a redundancy payment in line with the Redundancy Payments Acts in respect of her service between 15 March 2017 to the 30 April 2021.

It is agreed that the Complainant’s rate of pay before lockdown was €295 per week and that figure should be used when calculating the redundancy amount in accordance with Schedule 3 of the Redundancy Act 1967.

The Court determines that the Complainant’s claim is well founded.

The Adjudicator’s decision in relation is overturned.

	Signed on behalf of the Labour Court
	Katie Connolly
CO'R	______________________
16 November 2022	Deputy Chairman