ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021575
A Sandwich Artist
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 14/11/2019
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The Complainant claims that she commenced employment with the Respondent as a sandwich artist on 22 February 2014. She worked there with two others and the owner. She said that the owner told the staff on 29 January 2019 that due to poor financial returns the shop will be closing in a few days’ times. The shop closed for business on 2 February 2019 and never opened again.
The Complainant said that she was not offered any alternative work and is claiming her statutory redundancy.
The Complainant said that she worked up to approx. 20 hours per week and was paid €200 per week.
Summary of Respondent’s Case:
The Respondent attended the hearing on the day and said the business was trading negatively for 3 years and after ten years in business she had no choice but close the doors in February 2019.
She also provided me with an update on the Respondent’s correct details for the WRC records, which I have amended accordingly.
The Respondent corroborated the Complainant’s evidence.
Findings and Conclusions:
The Relevant Law
General right to redundancy payment.
Section 7 of the Redundancy Payment Act 1967 states the following,
“(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,
(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if —
(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6 of the Protection of Employment Act 1977,
(b) the dismissals concerned were effected on a compulsory basis,
(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by —
(i) other persons who are, or are to be, directly employed by the employer, or
(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,
(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and
(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees.
(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.
(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.
(4A) In ascertaining, for the purposes of subsection (2)(c), whether an employer has decided to carry on a business with fewer or no employees, account shall not be taken of the following members of the employer ‘ s family —
father, mother, stepfather, stepmother, son, daughter, adopted child, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister.
(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.”
The Complainant’s employment commenced on 22 February 2014 and she was paid €200 gross per week. She worked as a sandwich artist.
The business closed down on 2 February 2019 and never opened again.
I find that the complainant’s employment ended by way of redundancy on 2 February 2019.
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 decide that, pursuant to the Redundancy Payment Acts 1967 - 2014, the Complainant is entitled to a redundancy lump sum calculated according to the following criteria:
Date of start of employment: 22 February 2014
Date of end of employment: 2 February 2019
Average weekly gross pay: €200
This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the respective period of employment.
Dated: 11th December 2019
Workplace Relations Commission Adjudication Officer: James Kelly
Redundancy Payments Acts - business closed down - redundancy lump sum.