Complainant

Respondent

Parties

Munispari  Manickam

First Steps Creche

Representatives

  Appeared In Person

 No Appearance by or on behalf of the Respondent.

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-00065986-001

14/09/2024

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

CA-00066044-001

10/09/2024

On 10 and 14 September 2024, the Complainant, a Childcare Practitioner submitted a claim for a Lump sum Redundancy Payment. There were duplicate claims.

On 17 September 2024, the Respondent was notified of the claims.

The hearing was first set for 18 December 2024 and was postponed by the complainant .

On 6 December 2024, both Parties were invited to hearing scheduled for 10 February 2025 in the Cork WRC office.

On the day of hearing, the Complainant was the sole attendee at hearing. There was no appearance by or on behalf of the Respondent. There was no defence in the case.

At the conclusion of the hearing, I requested that the complainant provide a copy of her contract of her employment, and some pay slips linked to that employment.

The Respondent has not corresponded or communicated with the WRC and has not forwarded any reason for non  appearance at hearing.

Notification of hearing document, sent by registered post was returned to the WRC on 16 and 20 December 2024

The Complainant submitted two complaints, both seeking a lump sum payment in Redundancy from the same Respondent, First Step Creche on 10 and 14 September 2024.

CA-00066040-001 10 September 2024

My complaint is about my redundancy payment.

CA-00065986-001   14 September 2024

My complaint is about my redundancy payment.

These were merged into one single ADJ file on 17 September 2024 and forwarded for the attention of the Respondent.

The Complainant gave evidence under oath that she had commenced full time work as a Childcare Practitioner for Pre School children on 2 March 2020 until she was laid off following the floods in Midleton in October 2023.

The Complainant said she was unsure of her rights but learned that as her job had not been restored that she was entitled to a lump sum payment in Redundancy.

She submitted that she met her employer, Ms Rosaleen Cotter on July 20, 2024, in pursuit of a payment in redundancy.

The Respondent assured her that she would respond by the middle of August 2024, but she did not respond and did not answer phone calls or phone messages or emails .

The Complainant told the hearing that she earned a weekly gross payment of €520 .00 in respect of a 40-hr week.

I explored the circumstances of the claim and learned that the Childcare premises was damaged in the aftermath of the Midleton floods. The Complainant submitted that the respondent operated two creches, one in Midleton and Cork City, but she had not been offered a work placement after 18 October ,2023.

 The Respondent had given her an expectation that the Midleton creche would re-open, but this did not occur. She availed of job seekers benefit.

The Complainant said that she was disappointed that the Respondent had not communicated openly on the topic of her position. She felt she had no choice but to seek a redundancy payment .

The Complainant sought a lump sum payment in redundancy as she contended that her employment ended on 18 October 2023.

The Complainant responded to my request for supplementary information and forwarded an undated letter which confirmed a temporary lay off from the respondent employment dated 23 October 2023 and a pay slip, June 2023. I did not receive the requested contract of employment.

There was no appearance by the Respondent at hearing.

 CA-00066040-001 10 September 2024

The Complainant has come to this case in pursuit of a lump sum payment in redundancy following a period of lay off in October 2023.

In reaching my decision, I have considered all uncontested evidence before me in addition to the details submitted on the complaint form.

I have also noted the post hearing documents.

At the outset, I wish to outline that the Respondent in this case has not engaged with the claim. It is clear that the letter provided by the complainant placed a temporary lay off situation in the immediate after math of flood damage at the childcare facility. The letter forwarded to the complainant gave an expectation that employees on lay off would receive a next step communication.

This did not follow.

For the sake of completion, I have placed a short summary of the content of this document.

1.       The facility was closed for repairs post flood.

2.       Staff were placed on temporary layoff from 23 October 2023 .

3.       It was hoped repair work was to be concluded asap.

4.       Anticipation of new year work restoration.

5.       “Should you need anything from me let me know “

I accept that the Complainant was placed on temporary lay off on 23 October 2023 and she availed of job seekers benefit. I find that the June 2023 matches with the salary mentioned on the complaint form.

I am satisfied that she made efforts to reactivate her work and faced some uncertainty and avoidance by the Respondent.

I am satisfied from the evidence adduced that the Respondent was aware that the complainant was seeking a lump sum payment in redundancy.

The Redundancy Payments Act, 1967 at Section 7, sets out an entitlement to a lump sum payment in redundancy.

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.

The Complainant comes to this case from temporary layoff for the minimum period and some uncertainty on her employment status.

Section 12 sets out the circumstances on how an employee may action a claim for redundancy from temporary layoff. Section 13 provides for a counter notice of available work by the Respondent.

Right to redundancy payment by reason of lay-off or short-time.

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.

In the instant case, I am satisfied that the Complainant has made application for redundancy  against the Respondent and she made that application against a backdrop of temporary layoff. In so doing, she has forfeited her right to minimum notice.

 From the evidence before me it has not been apparent that this application was met by a counter notice of available work by the Respondent.

In the absence of counter notice the terms of Section 12 prevail .

I find that the claim is well founded. The complainant is entitled to avail of a lump sum redundancy payment from temporary layoff.

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 have found the claim is well founded.

I order the Respondent to make the Lump sum payment in redundancy to the Complainant on the following basis.

Date of Commencement of Employment 02 March 2020

Date of termination                                       23 October 2023

Breaks in Service         Covid Pandemic as applicable.

Weekly Wage                                                €520 .00

This order is made contingent on the complainant being in insurable employment for the period.

Claim for Lump sum payment in redundancy.