ADJUDICATION OFFICER DECISION
A Kitchen Fitter
A Kitchen Provider
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
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 Act, 2003 an eligible employee who is found to be redundant is entitled to two weeks statutory redundancy payment for every year of service. A further bonus week is added to this. All of this is based on the gross pay 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 complainant must be able to show two years of service in the employment.
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.
The Complainant issued a Complaint on the 9th of August 2019. The Complainant is looking for his Statutory Redundancy entitlement in circumstances where he says his position has ceased to exist.
Summary of Complainant’s Case:
The Complainant was engaged as a Kitchen installer and Fitter by the Respondent entity and was engaged in this capacity in May of 2013. In and around the middle of April 2018 the Employment came to be terminated and the issue is one of whether that termination amounted to a Redundancy or a Transfer of Undertaking,
Summary of Respondent’s Case:
The Respondent resisted the obligation to make a Redundancy payment in circumstances where alternative employment was available.
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of the two days of hearing herein. The Complainant was engaged in May of 2013 as a Kitchen Fitter by a Mr. WB who ran a kitchen installation business. The Complainant had worked with this same employer in the past and I understand that there has been an off and on employment relationship between the parties for up to 30 years.
On balance, I accept the evidence of the Complainant that in and around the middle of April 2018 he was advised by WB that he (WB) was folding his business and that he was giving the Complainant his two weeks notice. I further accept that this gave rise to an immediate discussion on the issue of the Complainant’s Redundant entitlements for his five years of service. The Employer indicated an initial unwillingness to pay it.
Ultimately the parties did in fact engage in a conversation about a lump sum payment which would have been in satisfaction of the Redundancy lump sum. However, the sum offered fell well short of the Complainant’s minimum statutory entitlement. The Complainant believed he should be paid his Minimum entitlement as he had always made his insurance contributions in the usual way.
WB was clearly of the view that the Complainant’s skill-set made him eminently employable and that he would, at the very least, be engaged by his Nephew who was running a wardrobe fitting business out of the same industrial unit as the Respondent’s own business. The Respondent believed that this offer of alternative employment in another entity meant he would have no obligation under the Redundancy Acts.
It was necessary to have the Complainant’s nephew make himself available to give evidence. The Nephew agreed that he would employ his uncle at any time but that his uncle had not come to work with him in May 2018 at the cessation of the employment with the Respondent.
The Nephew did agree that he had signed a document with WB wherein he would take over WB’s showrooms and any ongoing kitchen building and fitting business. This document, described as a “Business Transfer Agreement”, was signed on the 3rd of June 2018 some four or five weeks after the Complainant’s own employment with WB had been terminated. I note that the agreement purports to transfer the Complainant to the Nephew’s employment as part of some sort of Transfer of Undertaking arrangement.
On balance, I find this document to have been created at the instigation of the Respondent and for the sole purpose of avoiding the payment of a Redundancy package, when talks on that topic broke down between the Complainant and the Respondent in April 2018. This was a clear Redundancy situation. Section 7(2) of the Redundancy Payments Act, 1967, states:
For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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…
I accept that paragraph (a) applies herein.
The Nephew had indicated that he was not best pleased at having to come to give evidence in a matter that he felt should have been sorted out between the parties who had worked off and on together for so many years. I am grateful to the Nephew for providing clarity but would also suggest that he had played a part in creating confusion when he signed the aforesaid document without really understanding the potential implication of same.
In any event, I am satisfied that the Complainant herein is entitled to succeed and is entitled to a payment of Statutory Redundancy.
I am satisfied that the employment extended beyond the 104 weeks required under Statute.
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
Based on the evidence before me I am satisfied that the complainant’s employment terminated on 4th May 2018 by reason of redundancy.
I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:
Date of Commencement: 8th May 2013
Date of Termination: 4th of May 2018
Gross Weekly Pay: €619.00
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Workplace Relations Commission Adjudication Officer: