ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046033
Parties:
| Complainant | Respondent |
Parties | James Browne | Attitude Technologies Limited |
Representatives | Appeared In Person | No Appearance by or on behalf of the Respondent |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00056907-001 | 30/05/2023 |
Date of Adjudication Hearing: 25/09/2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
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.
Background:
On May 30, 2023, the Complainant, a sales Manager filed a complaint that he had not received any redundancy payment following his dismissal through redundancy on May 1, 2023. There was no response to the claim from the Respondent, who did not attend the hearing on 25 September 2023. The Complainant presented his own case and forwarded pay slips and letter of dismissal dated May 1, 2023, post hearing as requested. Prior to hearing, I had addressed both parties seeking outline submissions. I was unsuccessful on both counts. Two weeks have now passed since the hearing date and the Respondent has not forwarded any excuse or reason for the failure to attend the hearing in the matter. The Complainant gave evidence under oath. |
Summary of Complainant’s Case:
The Complainant outlined that he had worked as a Sales Manager with the Respondent from 16 August 2019 to the date of his dismissal on May 1, 2023. He earned a monthly pay of €4, 583 grosses. The Complainant submitted that he had requested a redundancy payment at the conclusion of his employment, but the Respondent did not honour his request. The Complainant outlined that he had commenced work as Sales Manager in the Respondent business which initially sold cat litter. In December 2019, Mr A for the Respondent went to China to celebrate Chinese New Year and as far he was aware never returned to Ireland. The Complainants role was to connect with suppliers. He said that he was unable to exhibit his contract of employment as it was locked into the company premises, which he understood was padlocked since April 2023 following an extended period of not paying the rent. During Covid the business diversified into covid related protection equipment and sanitisers, which were imported directly from China. Business thrived and the Complainant took a leading role in that growth as the Respondent was not present at the business. On May 1, 2023, he received the following letter from the Respondent, Mr Songtao Dai Unfortunately, due to circumstances outside of our control we have to regretfully terminate you (sic) contract immediately. The letter is to inform you that your employment with Attitude Technologies ltd will end as of 1st May 2023, you will finish with us, today. I thank you for your agreement and co operation in your handover period and I wish you the very best in your future career. If I can be of any assistance to you, please do not hesitate to contact me. The Complainant said that he had not been paid for the last month of his employment, untaken but accrued annual leave and his notice. I advised him that I did not have remit within this case to address those issues. The Complainant accepted that explanation and indicated that he would consider a separate action. The Complainant followed through on the invitation to contact the respondent and asked for redundancy. He made several contacts without success until his calls were blocked by the Respondent. The Complainant followed up with the Company Accountants, who advised progression to WRC. A fellow employee in administration had left and found new work. The complainant exhibited pay slips and the letter of dismissal. In relation to the contract of employment, he confirmed that one was in existence but was a remnant in the locked office and unobtainable. The complainant submitted hat he was disappointed with his former employer as he believed that he deserved to be treated fairly in accordance with the law. |
Summary of Respondent’s Case:
The WRC was notified of this claim on May 30, 2023. The Respondent did not file a defence in the claim or attend the hearing.
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Findings and Conclusions:
This is a claim for a lump sum payment in redundancy in respect of an employment which ended on May 1, 2023. My jurisdiction arises from the Redundancy Payments Acts 1967-2014, in particular Section 7 of that Act. I am satisfied that the Respondent was properly placed on notice of this claim by the WRC, through registered post, not returned, and that the failure to respond to the claim or attend the hearing was unreasonable on his behalf. My search at CRO indicated that the company was registered in 2015 and has normal trading status with the next accounts due in October 2023. I have reflected on the efforts exerted by the complainant to secure a redundancy payment. I find the respondent lack of response to the complainant to be unhelpful and not the actions of a reasonable employer, who has clearly benefitted from the complainants work while he was in absentia in China. I find that the Respondent failed to practice as a reasonable employer by not managing the conclusion of employment through the accessible legislative framework of the Irish Jurisdiction. I will now consider the claim. Section 7(1) of the Act outlines the circumstances where a lump sum payment in redundancy is paid. General right to redundancy payment. 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. Section 7 is contingent on the application of Section 9(1) of the Act Dismissal by employer. 9.— (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. I am satisfied that the Respondent brought the employment to an end through dismissal on May 1, 2023. I am satisfied that the complainant has 104 weeks continuous service. I am also satisfied that the circumstances of that dismissal were informed by Section 7(2) (c) of the Act. 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 © 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, St Ledger v Frontline Distributors Ireland ltd [1995] ELR 160, clearly delineated the two important characteristics in statutory redundancy as impersonality and change, which run through the 5 definitions of redundancy. That case has application here. I have no way of knowing what the financial status of this company is, beyond what is available on CRO, or whether the respondent intended to enter an inability to pay. I find it unusual that the accountants, who managed the pay slips did not manage the claim for redundancy. I am satisfied that the complainant was dismissed from his employment on May 1, 2023, through the circumstances of redundancy as set out in Section 7 (2) (c) of the Act. He is entitled to secure a lump sum payment in redundancy based on the following criteria. Dates of Employment 16 August 2019 ----- 1 May 2023 Breaks None Wage € 1,145 (statutory ceiling €600) This is contingent on the complainant having been in insurable employment. The claim is well founded, the Complainant was made redundant. |
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. The Complainant is entitled to secure a lump sum payment in redundancy based on the following criteria. Dates of Employment 16 August 2019 --- 1 May 2023 Breaks None Wage € 1,145 (statutory ceiling €600) This is contingent on the complainant having been in insurable employment. The claim is well founded, the Complainant was made redundant.
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Dated: 13th October 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Redundancy |