Complainant

Respondent

Parties

Rose  Fitzsimons

Ten Textiles t/a Bed Linen Warehouse

Representatives

Self

Did not attend

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-00056097-001

14/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00056097-002

14/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056097-003

14/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056097-004

14/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056097-005

14/04/2023

The complainant commenced employment with the respondent on 20/09/2017.  She worked a 24-hour week and was paid €250.00 gross. In her complaint form the complainant submitted that she did not receive a redundancy payment when the respondent closed its premises.  She was also not advised that the respondent was unable to pay her redundancy.  The complainant also did not receive any payment in accordance with the provisions of the minimum notice legislation.

The complainant submitted a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.

The complainant gave evidence that she worked for the respondent from 20/09/2017 until 31/12/2022.  She was paid €250 gross per week and worked 24 hours per week.  The complainant outlined that this job suited her as she liked working in retail and she was able to walk from her home to work.

When the respondent’s business closed after Christmas in December 2022 the complainant was due to resume work on 05/01/2023.   At 10.30pm on 4/01/2023 she received a text message from one of the owners of the business (Mr F A) to tell her not to come into work as they were in dispute with the Centre where the shop was based, and he undertook to let her know when she should come back to work.  The complainant provided copies of these text messages to the hearing.  From Mr F A: “Hi Rose, xx shop is closed temporarily till further notice.  There is dispute with the Centre”.  When the complainant asked how long it would be closed, she was received a reply: “not sure just found out yesterday I will know better in the next few days”.

The complainant kept in text contact with one the respondents but there was no update.  She was told by a friend who worked in the Centre that the respondent was loading up a van and clearing out the shop.  On receipt of this information the complaint asked the respondent if this was correct, and he confirmed that it was.  The complainant then took advice from the Citizens Advice Centre and following this she contacted the respondent again to say that she felt disrespected after working for the respondent for over five years and that she provided a lot of input to ensure that the shop was doing well.  She outlined that she only received notice not to attend work on the day before she was due to resume work.  The complainant advised the respondent that under the redundancy legislation she was entitled to a redundancy payment, and she provided details of what this amount should be.

The respondent replied: “Yes of course your due whatever the law says.  Without any doubt but if you think its four own the company your mistaken but yeah, I will get all I can for you”.    The complainant was reassured a few days later by the respondent that: “we are working on it”.  After a few weeks the complainant asked for a specific date when her redundancy would be paid and to outline that she was unable to obtain any social welfare payments as the respondent continued to advise Revenue that she was being paid when in fact she was not.  The complainant did not receive any assistance from the respondent to sort this out. 

The complainant was then advised that they may be able to offer her a job in their Ballyfermot shop.  The respondent also advised the complainant that: “you were informed a day before the closing of the shop and that’s more than adequate time.  You’re an employee and not a shareholder so we are not under any obligation to tell you anything regardless if you’re the only sales assistant there.  You were one of our best workers and we wish you all the best for the future and thank you for the 5 years of hard work you put in but again we are not under any obligation to give you notice of business closure as your an employee not a shareholder".  She was advised to speak to another of the respondent’s four owners about redundancy.

The complainant advised the respondent that a move to their Ballyfermot shop would involve about three hours travel each day.  At the end of January 2023, the respondent confirmed that they had now amended the complainant’s Revenue record.  The complainant was also advised that as they had transferred her job to the Ballyfermot branch: “You will be working in Ballyfermot branch, no redundancy issue so you may start next week. Thanks.”

The complainant gave evidence that she sent the RP9 form to the respondent at their Ballyfermot shop seeking a redundancy payment and requesting her entitlements to pay in lieu of no notice.  The complainant also explained that she was offered one day per week in the Ballyfermot shop and having researched the bus routes it would take her 1 ½ hours to get there and this would add three hours travel to her day whereas she was previously able to walk from her home to work.

The complainant in her evidence outlined that she feels totally disrespected by the respondents and particularly in view of the hard work she put into the shop.  She feels that she was passed around from one owner to another to frustrate her and to avoid them having to pay her any of her entitlements.    This experience has been very stressful for her, and she is most unhappy with the respondent.  The complainant submitted her complaints to the WRC on 14/04/2023 in order to assist her with her complaints.  She outlined that the amounts involved may seem small but represent a significant amount to her.

The respondents or a representative on their behalf did not attend the hearing.  There was no application for a postponement received.  I am satisfied that the respondents were notified by registered post of the date, time, and venue of the hearing.

The complainant submitted her complaints to the Workplace Relations Commission on 14/04/2023.

There are two complaints submitted alleging breaches of the Redundancy Payments Act, 1967:

CA-00056097-001:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  The specific complaint is that the complainant did not receive a redundancy payment in accordance with the provisions of the Act.

CA-00056097-002:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  The specific complaint is that the complainant did not receive proof of her employer’s inability to pay redundancy - Statement of Affairs (Redundancy Payments Acts, 1967).

The Law:

Section 7(2) of the Redundancy Payments Acts outlines five different scenarios where “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 for business of which the employee was employed by him, or has ceased to 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 a place where he was so employed have ceased or diminished or are expected to cease of 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 has 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. 

It was submitted by the complainant that there is clear and unequivocal evidence that the respondent has ceased to carry on the business for which she was employed.  It is a matter of fact that the shop where she work closed at the end of December 2022 and did not open again. The text messages from the respondent to the complainant confirms that fact.  It is also a fact that the respondent operates another shop in the Ballyfermot area.

The Redundancy Payment Act 1967 Section 7(1) gives a general right to redundancy:

 “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 which was so insurable in the period of two years ending on that date.”

I have carefully considered and reviewed the documents, submission and evidence provided at the hearing.  As the respondent closed the shop on 31/12/2022 the complainant’s contract of employment ended on that date. I find that the date of dismissal is 31/12/2022 and that this was a dismissal in accordance with section 9(1)(a) and (b) of the Act. 

The complainant is entitled to a redundancy lump sum.  Her payment is to be calculated according to the following criteria:

Employment start date:  20/09/2017

Employment end date:  31/12/2022

Gross weekly remuneration:  €250

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

There are three complaints submitted alleging breaches of the Minimum Notice & Terms of Employment Act, 1967

CA-00056097-003:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & terms of Employment Act, 1973.  The specific complaint is that the complainant did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof in accordance with the provisions of the Act.

CA-00056097-004:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & terms of Employment Act, 1973.  The specific complaint is that the complainant did not receive all her rights during the period of notice in accordance with the provisions of the Act.

CA-00056097-005:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & terms of Employment Act, 1973.  The specific complaint is that the complainant did not receive minimum notice of termination of her contract of employment from the respondent in accordance with the provisions of the Act.

The Law:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

“4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week, 

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, 

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, 

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, 

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks”.

Based on the uncontested evidence of the complainant, I find that the complainant had been in continuous employment with the respondent for over 5 years, but less than 10 years when her employment was terminated by reason of redundancy on 31/12/2022. Therefore, the complainant had accrued a statutory entitlement to four weeks’ notice in accordance with the provisions of Section 4(2)(d) of the Act on the termination of her employment. I find that the Complainant was not afforded her statutory notice entitlement or payment in lieu thereof prior to the termination of his employment with the respondent.  Accordingly, I find that the Complainant is entitled to compensation in respect of four weeks’ notice in accordance with the provisions of the Act.

I also find that the respondent has failed to provide the statutory notice or payment in lieu.  I find that the complaint is well founded. I have decided that the complainant is due the sum of €1,000 gross.

CA-00056097-001:  I find that this complaint is well-founded.  The complainant is entitled to a redundancy lump sum payment is to be calculated according to the following criteria:

Employment start date:  20/09/2017

Employment end date:  31/12/2022

Gross weekly remuneration:  €250

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00056097-002: Based on the uncontested evidence of the complainant I find that this complaint is well-founded, and the complainant is entitled to the redundancy payment as outlined above.  The respondent is directed to pay this sum to the complainant within four weeks of the date of this decision.

CA-00056097-003:  Based on the uncontested evidence of the complainant I find that this complaint is well founded, and I award the complainant the sum of €1,000 gross which is the equivalent to four weeks pay.  This amount to be paid to the complainant within four weeks of the date of this decision.

CA-00056097-004:  Based on the uncontested evidence of the complainant I find that this complaint is well founded, and I award the complainant the sum outlined in CA-00056097-003.  This amount to be paid to the complainant within four weeks of the date of this decision.

CA-00056097-005:  Based on the uncontested evidence of the complainant I find that this complaint is well founded, and I award the complainant the sum outlined in CA-00056097-003.  This amount to be paid to the complainant within four weeks of the date of this decision.

Redundancy payment.  Minimum notice.