ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055445
Parties:
| Complainant | Respondent |
Parties | Regina Cruise | Street Food Outlet |
Representatives | Self-represented | Nicola Murphy Peninsula Business Services Ireland |
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-00067523-001 | 20/11/2024 |
Date of Adjudication Hearing: 13/05/2025
Workplace Relations Commission Adjudication Officer: Dónal Moore
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015and 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.
This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.
Following the judgement in Zalewski v Adjudication Officer, WRC & Ors [2019] the parties were advised that hearings before the Workplace Relations Commission are held in public and, in most cases, decisions are not anonymised.
The parties were also advised that Adjudication Officers hear evidence on oath or affirmation and all participants who gave evidence were sworn in.
Both parties were offered the opportunity to cross-examine the evidence and where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute
Background:
The matter of dispute is the non-payment of redundancy pay in circumstances where the Respondent position was that due to the nature of continual fixed term contract and the natural conclusion of the same no redundancy fell due to be paid to the Complainant. The matter was first heard on the 14th of January 2025, where the parties had not provided detail of the arguments and I adjourned the matter to allow them both submit documents. |
Summary of Complainant’s Case:
The Complainant was employed by the Respondent from the 11th of October 2021 to 26th of August 2024 where she received notice and finished the next day. She submitted her case to the Commission on the 20th of November 2024 bringing her complaint under the Redundancy Payments Act properly within the 6-month timeframe. The Complainant sets out that she was paid €12.70 per hour for 20 hours per week (€254.00 weekly gross). The Complainant submitted a copy of a contract that she would be moving from one site to another site dated the 8th of March 2024 Despite initially requesting the Complainant to move from the D14 site to the D4/5 site The Respondent refused to allow her to move to the D4/5 site when the D14 was becoming quiet. On questioning the move set out in the contract of the 8th of March 2024 she was informed that it was a misprint. The Complainant also submitted evidence of text messages regarding holidays. These are set out to show that the Respondent had refused 2 of these days and later the 28th of Aug 2024 claimed in writing he approved them. This was after the termination of the contract and left the Complainant short of two days annual leave pay. On the matter of a back week, the Respondent claimed that the Complainant had not worked a back week, and the Complainant set forth her bank statement to counter this and outlined an issue with the change of name of the Respondent. |
Summary of Respondent’s Case:
The Respondent set out that the Complainant was paid €12.70 per hour on a 19-hour week (€241.30 weekly gross). The natural expiration of their fixed term contract on the 20th of November 2024 The position of the Respondent is that the Complainant is attempting to use the opportunity provided by the Adjudication Officer to provide specific documentary evidence relating to her claim before the WRC in relation to the Redundancy Payment Act, 1967, to instead attempt to ventilate other, new claims, which are not properly filed, particularised, nor attributed to any legislation. The Respondent sets out that the other matters do not fall within the complaint submitted under the Redundancy Payment Acts. The Respondent submitted a letter dated the 6th of September 2024 on annual leave and rounding the allowance up from 16.2 to 17 days as a matter of goodwill and paying the Complainant their notice period in lieu of. The Respondent in denying the suggestion of all other claim arising from the new documentation and relies upon the fixed term nature of the contract of employment. |
Findings and Conclusions:
For the sake of clarity, the Complainant’s last date of employment was 27/09/2024, her start date of employment was the 11/10/2021. Furthermore, she referred her claim on the 20/11/2024 within the 6-month time limit for the complaint. The first hearing on this issue was adjourned to allow the parties prepare a full case to be heard and a document was received from both parties. It is set out the by the Respondent that the Complainant is attempting to ventilate other issues outside of the original complaint and I agree fully with the Respondent that it is not possible to pursue anything other than the Redundancy issue. The Respondent also introduced some evidence on the absenteeism of the Complainant which is not relevant to the complaint. It is agreed that the Complainant was paid €12.70 per hour, the Complainant sets out that they worked 20 hours and the Respondent sets out that it was 19 hours. The key facts in this case are that the business closed at one of the Respondent locations at a building site, and this coincided with the elapse of the fixed term contract of the Complainant. The only question remaining is if there is an entitlement to a Redundancy payment in those circumstances. The Complainant has set out that they were advised that they had a claim but had no details of what that opinion was based. The Respondent sets out that the cessation of the contract is separate from the cessation of activities at the site where the Complainant worked. They argue that the non-renewal is simply that and the fact of the business closing at the location is irrelevant. A complicating factor is the offer of work at another site of the Respondent which was evident in writing where the Complainant would be expected to move to another site at the behest of the Respondent. The Respondent claims this was in error, but with the existence of work on the other site where new staff had to be hired and where the Complainant was willing and able to move and had made attempts to have this initiated with no response from the Respondent. It is difficult to see how the Respondent could rely on a misprint or an error in the contract between the parties, such a clause is evidenced in writing and is a burden one party as much as the other. The Labour Court, in Smorg Roi Management ltd V Buckley RPD1812, addressed the issue of those on fixed term contracts entitlement to redundancy pay on the expiry of their last contract where they had the requisite qualifying service. The right to redundancy in such cases arises from ss7 and 9 of the relevant Act. It was set out by the Respondent in Smorg that: “it employed the Complainant on a series of fixed term contracts of employment. It submits that as the employment was of a fixed term nature the Complainant has no entitlement to Redundancy Pay within the meaning of the Acts.” The Court found no merit in this argument that successive fixed term contracts disbarred an employee from an entitlement to redundancy where they were dismissed only by the elapse of time. “The Court is satisfied that it is settled law that the combined effect of s.7(2)(b) and s.9(1)(a) of the Redundancy Payments Act 1967 makes it clear that the termination of employment in these circumstances constitutes a redundancy that qualifies the Complainant to receive redundancy pay within the meaning of the Act.” Separately, It is clear to me that there was a possibility of employment at the other site, and this was allowed for in the contract of employment and other causes of action may have been open to the Complainant if they had thought to pursue them. More importantly, It is also clear that the business requirements for a Deli Assistant at that site had ceased and the role of Deli Assistant had become redundant within the meaning of the Act. In the present case the employer could have continued the contract at the alternative site, and it would have been reasonable to presume in the absence of any other issue they would do so. More importantly the facts are that the role fulfilled by the Complainant was no longer available to the parties in terms of s7(2)(b) and there was no renewal of the contract. I do not find merit in the argument that the contract had simply elapsed, and this is the only reason for the employment ending. It is clear to me from the submissions and the evidence at the hearing that the role had become redundant and following the decision of the Labour Court in Smorg a liability for redundancy pay has come into effect. |
Decision:
Section 41 of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Acts 1967 – 2012 require that I make a decision in relation to the complaint in accordance with the relevant redress provisions under those acts.
For the reasons set out above I find that the Complainant is entitled to statutory redundancy lump sum payment based on the following: Date of Commencement 11/10/2021 Date of Termination 27/09/2024 Gross Weekly Pay €241.30 This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. |
Dated: 09-07-2025
Workplace Relations Commission Adjudication Officer: Donal Moore
Key Words:
Smorg, fixed term contract redundancy |