Complainant

Respondent

Parties

Andrew  McDonnell Buggle

San Siro Ltd

Representatives

Self

N/A

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-00067117-001

03/11/2024

At the time the adjudication hearing was due to begin, it was apparent that there was no appearance by or on behalf of the Respondent. I satisfied myself that it was on notice of the date, time and venue of the hearing and waited some time to accommodate any late arrival.

In the circumstances, and being satisfied that the Respondent was on notice of the date, time and venue of the hearing, it proceeded in the absence of the Respondent.

The Complainant gave evidence on his own behalf in relation to his complaint under the Redundancy Payments Act, 1967, as amended.

The Complainant stated that he began work with the Respondent on 31st July 2018 and remained in employment there until 24th December 2023. On that date, a violent incident took place in the restaurant after which it closed and never re-opened. The Complainant says that he was repeatedly told throughout January, February and March 2024 that it would reopen, but it never did.

He submitted a complaint form on 3rd November 2024 which stated that he “was never given my final pay, annual leave entitlements or redundancy pay”. He enquired with his employer in relation to these matters but no response was ever received.

The Complainant provided a number of payslips ranging from 25th June 2023 to 29th October 2023 showing a fortnightly gross pay of €1269.23 on each occasion. He gave evidence that in 2023, he had an entitlement to 4 weeks annual leave, but only took two weeks and so was still owed the additional two weeks. He said that he never received his final pay or annual leave entitlements and also made reference to public holiday entitlements.

This hearing was originally scheduled to be heard at 10am on 2nd April, 2025. The Respondent did not attend the adjudication hearing on that occasion. The Adjudication Officer was not satisfied at that time that the Respondent was properly on notice as the hearing notification letter had not been sent to the registered address of the Respondent company. The hearing was adjourned so that the hearing notification letters could be sent to the company’s registered address.

Notice of the hearing arrangements for the hearing on 28th May 2025 was sent to the registered address of the Respondent on 2nd April 2025 and again on 4th April 2025. I am satisfied that the Respondent was on notice of the time, date and venue of the hearing but did not attend.

The Complainants complaint form stated that he was seeking adjudication of a complaint under section 39 of the Redundancy Payments Act, 1967, as amended. This Act states, at section 24, that:

“Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.”

I am satisfied that the Complainant has submitted his claim for redundancy within the period of 52 weeks from the date of termination of his employment.

Section 7 of the Redundancy Payments Act 1967, as amended, provides as follows:

"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 two years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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, or 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.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks."

Section 39 of the Redundancy Payments Acts 1967, as amended, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.  As the Complainant’s employer has ceased operations in the place where he was employed, his job has become redundant.  Based on his uncontested evidence, he has completed more than two years of service and is therefore entitled to a redundancy payment.

The Complainant also stated that he never received his final pay or annual leave entitlements and during the hearing he made reference to public holiday entitlements. These would appear to be complaints under legislation such as the Minimum Notice and Terms of Employment Acts, 1973-2005 and the Organisation of Working Time Act, 1997. The Complainant did not specifically raise complaints under either of those pieces of legislation in his complaint form. Reference to these complaints is contained in the narrative part of the form only. Even if I were to consider that setting out the complaints in narrative form entitled the Complainant to seek redress under these Acts, they are still subject to statutory time limits.

Section 41 of the Workplace Relations Act, 2015 (the Act) states that an employee may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1 or 2 of Schedule 5. Both the Minimum Notice and Terms of Employment Acts, 1973-2005 and the Organisation of Working Time Act, 1997 are contained in Schedule 5. However, section 41(6) of the Act states that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) of the Act states that:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complainant ceased employment on 24th December 2024. Applying section 41(6) of the Act then, at the very latest, the Complainant would have to have submitted any complaints relating to notice, annual leave and public holiday entitlement within 6 months of that date. Six months from 24th December 2024 is 24th June 2024. The within complaint was received on 3rd November 2024.

This period can be extended to twelve months in accordance with the provisions of section 41(8) of the Act in circumstances where the complainant can demonstrate that there was “reasonable cause” which prevented him from referring the complaint within the prescribed time limit.

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay. 

The Labour Court set out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338]. In that decision it stated as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

It is evident from the above that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.

The Complainant stated, in relation to there being reasonable cause to extend the time limit from six to twelve months, that the reason for not submitting the claim was because he had been told for months that the restaurant would reopen.

Even if the Complainant had properly raised complaints under the Minimum Notice and Terms of Employment Acts, 1973-2005 and the Organisation of Working Time Act, 1997 in his complaint form, I am not satisfied that there is reasonable cause to exercise my discretion and extend the time limit in this case. The Complainant has not satisfactorily explained why, once it became clear that the restaurant was not reopening, he did not submit complaints within the relevant time in relation to these matters. The Complainant’s belief that the restaurant might reopen may explain some, but not all, of the delay and in my view does not excuse it.

My decision therefore is in relation to the one complaint which was properly raised on the complaint form and is within time, that of one under section 39 of the Redundancy Payments Act, 1967, as amended.

Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I declare that the Complainant is entitled to a statutory redundancy lump sum payment calculated in accordance with the following criteria:

·       Date of commencement: 31st July 2018

·       Date of termination: 24th December 2023

·       Gross weekly wage: €634.61 (subject to the statutory wage ceiling of €600 per week)

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

Redundancy