ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039119
Parties:
| Complainant | Respondent |
Parties | Deirdre Legall | West Pier Ltd t/a The Brass Monkey Restaurant |
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-00050648-001 | 17/05/2022 |
Date of Adjudication Hearing: 29/11/2022
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Procedure:
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. The parties were also afforded the opportunity to examine and cross-examine each other’s evidence. All evidence was given by oath or affirmation.
Background:
The complainant says she should have been made redundant when, shortly after it re-opened following closure caused by the Covid pandemic, there was a fire on the premises, this caused a significant closure and uncertainty about the re-opening of the restaurant. |
Summary of Complainant’s Case:
The complainant says she worked for the respondent from March 2010 as Restaurant Manager. On 23 July 2021 the restaurant premises went on fire and she was told to sign on for Jobseekers Benefit until it re-opened. In October 2021, with no probability of the business reopening before Spring 2022 the complainant submits that she sent in a Form RP9 to the respondent and asked to be made redundant, as she had been told by Social Welfare to get employment, and she could not wait until Spring 2022 to get back to work. The respondent told her that they would not have the money to pay her redundancy. The business reopened in March 2022 and the complainant has chased up the redundancy form and the respondent is still telling her they do not have the money to pay her redundancy. |
Summary of Respondent’s Case:
The respondent submits the complainant was hired as Manager of the restaurant in February 2010. In June 2021, following a 6-month lockdown, the restaurant opened for outdoor dining but on 23 July 2021 a fire destroyed the restaurant and was closed again. Staff were given the option of working in another restaurant or to sign on for Social Welfare until the restaurant reopened. The respondent says the complainant went to work somewhere else. The re-opening was delayed and it became clear by September 2021 the restaurant would not re-open until February 2022. The complainant met one of the owners of the restaurant in October 2021 and asked to be made redundant. She said Social Welfare had told her the state would pay the redundancy. The respondent knew the complainant had been doing a healthcare course but did not realise she was looking for work. The complainant said she was starting work the following week and she asked the respondent for a reference. The complainant gave the respondent a form regarding redundancy, which the respondent said she would pass on to the accountant. The complainant also asked if she could stay on at the restaurant when it did re-open and work two shifts a week, but not as manager; the respondent agreed to this. The accountant said the complainant had been misinformed and the redundancy payment would not be covered by the state unless the company was in liquidation. Prior to the reopening the respondent contacted the complainant to see if she was still ok to do some shifts but she said she had changed her mind. The restaurant owner said she signed the forms and contacted the complainant to collect but told her the accountant knew nothing of how to get the redundancy, considering she was not made redundant and the restaurant was now back open. In April the owner organised a going away party for the complainant. At the end of the night the two co-owners gave the complainant flowers and a cheque for €2,000. A couple of weeks later it was not noticed that the cheque had not been cashed. The respondent submits the complainant was not made redundant and they had no intention of making her redundant. |
Findings and Conclusions:
This complaint is made under the Redundancy Payment Act and the complainant alleges the respondent made her redundant. In particular, she alleges she twice asked the respondent to complete a form RP9. She first asked the respondent to complete the RP9 in October 2021 but she got no reply. She sent the form to the respondent again in February 2022; it was returned signed but undated, also two different sections, which contradicted each other, were completed. The complainant was verbally told the respondent could not afford to pay her the redundancy money. Following the fire the complainant was given an option to work in a sister restaurant and she gave direct evidence she chose not to work there because of previous staff difficulties in the sister restaurant. When she signed on with Social Welfare she was told she would have to start looking for other jobs. This was why she wanted to be made redundant; as there was no immediate prospect of the restaurant reopening. I have to decide if the complainant is entitled to receive a redundancy payment in accordance with section 7 of the Redundancy Payments Act, which states: “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 F18 [ four years ] ending on that date.” The respondent claims the complainant has not been dismissed and section 9 of the Act states: “(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if— (a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or (b ) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or (c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer‘s conduct.” Looking at section 9 (a) it is clear to me that the respondent did not terminate the complainant’s contract. However, the respondent was not able to offer the complainant any work until the restaurant re-opened. She was offered alternative employment but this was in another entity and I conclude the offer was not in an “associated company” and the complainant was not obliged to accept this alternative work. Therefore, she is not disentitled to redundancy payment for refusal to accept alternative employment, as set out in section 15. Section 11 sets out under Lay-off and short-time. 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 12 Redundancy Payments Act, 1967 states as follows: 12(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless— (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time. (2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.” It is clear that the complainant was laid off in in July 2021 when the restaurant fire occurred. The respondent was unable to give a clear date when the restaurant re-opened. The complainant submitted an RP9 for the respondent to complete in October 2021 but this was ignored by the respondent. The restaurant did not re-open until March 2022. I find that the complaint under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:
Start date: 10 March 2010 Termination date (when RP9 served): 22 October 2021 Weekly gross pay: €460.00 Period of lay-off: 23 July 2021 to 22 October 2021 These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. |
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 find that the complaint under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following: Start date: 10 March 2010 Termination date (when RP9 served): 22 October 2021 Weekly gross pay: €460.00 Period of lay-off: 23 July 2021 to 22 October 2021 These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. |
Dated: 01st March 2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
Redundancy – lay-off |