Complainant

Respondent

Parties

Partick Joseph  Doyle

Gerard Luskin t/a  Luskins Bistro

Complainant

Respondent

Anonymised Parties

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Representatives

Breege O'Hora South Connacht Citizens Information Service

 Self-Represented

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-00066245-001

25/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066245-002

25/09/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and the respondent undertook to give their evidence under affirmation.  Cross examination was offered but not availed of.

As a preliminary matter, the complainant sought that the owner’s name be included in the decision as there is no record of the trading name with the Companies Registration Office.  The owner indicated that the entity was simply the trading name.  In the circumstances, the owners name is included in this decision, along with the trading name of the respondent.

The complainant submitted that he was employed by the respondent From June 2016 until 13 April 2024 when the business closed.

CA-00066245-001 Redundancy Payments Act

The complainant stated that his employment ended due to redundancy.  He provided a copy of a letter from the respondent confirming the end of the business.  He stated that although he submitted an RP77 to the respondent it was not completed, as the respondent indicated that he did not know how to do so.  The complainant also stated that the respondent told him that he needed to try to go to the insurance fund for his redundancy payment.

CA-00066245-002 Payment of Wages Act

The complainant stated that the respondent only gave him verbal notice of his redundancy of one week and that he was entitled to a further three weeks redundancy payment due to the length of his service with the respondent.

CA-00066245-001 Redundancy Payments Act

The respondent confirmed that the complainant’s employment came to an end when he ceased trading on 13 April 2024.

CA-00066245-002 Payment of Wages Act

The respondent stated that he mentioned to the complainant that he should start looking for another position just after Mother’s Day in 2024 but confirmed that he told him definitively that the business was closing down in or around 8 April 2024.

CA-00066245-001 Redundancy Payments Act

Section 7(1) and (2) of the Redundancy Payments Act, 1967 states 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 four 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 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

(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 had 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,

Having regard to the foregoing, and to the uncontested evidence provided by the complaint, I am satisfied that his employment came to an end by way of redundancy in accordance with the Act when the restaurant closed down on 13 April 2024.

I find that the complainant has established an entitlement to a redundancy payment in accordance with the Act and accordingly, I find favour of the worker in the appeal of the employer’s decision to deny him redundancy.

The complainant gave evidence of having been employed with the respondent from 01 June 2016 until 13 April 2024.  Having regard to the foregoing, and to the evidence provided by the complaint and respondent, I am satisfied that his employment came to an end by way of redundancy in accordance with the Act.

CA-00066245-002 Payment of Wages Act

The complainant submitted that he was entitled to notice of four weeks in accordance with the Minimum notice and Terms of Employment Act, 1973.  He stated that he received one week but was entitled to a further three weeks.  Section 4(1) of that Act states as follows:

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.

The Payment of Wages Act, 1991 defines wages as follows:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

Arising from the foregoing 4(1)(c) of the Minimum Notice and Terms of Employment Act and from section (b) of the definition of wages contained in the Payment of Wages Act, I am satisfied that the employee was entitled to be paid three further weeks.  The employees net pay is €523.12 as per the payslip submitted.  Therefore, I find that this complaint is well founded and I am satisfied that compensation equivalent to three weeks net pay is reasonable in all the circumstances, that is €1569.36

CA-00066245-001 Redundancy Payments Act

Having considered all the relevant information provided by the complainant, I am satisfied that the complainant has established that he is entitled to a redundancy payment in accordance with the Acts.  My decision is to allow the complainant’s appeal against the decision of the employer.

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 decided that the complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement: 1 June 2016

Date of Termination: 13 April 2024

Gross Weekly Pay: €615.39

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

CA-00066245-002 Payment of Wages Act

Having considered all the written and oral evidence presented in relation to this compliant, my decision is that complaint is well founded, and I direct that the employer pay the complainant compensation of €1569.36 which is reasonable in all the circumstances.

Redundancy Payments Act – entitlement to payment established – Payment of Wages – three weeks’ notice outstanding – compensation awarded