RP1486/2011

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                 CASE NO.

Employee – appellant                                                                        RP1486/2011        

Employer – respondent 1

Employer – respondent 2

Em-ployer – respondent 3

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms O. Madden B.L.

Members:        Mr M. Carr

                        Mr. J. Dorney

heard this appeal at Dublin on 25th September 2013

Representation:

_______________

Appellant(s):               Mr Andrew Cody

                                    Reidy Stafford Solicitors

                                    Main Street, Newbridge, Co Kildare

Respondent(s):            In person

The decision of the Tribunal was as follows:-

Summary of Evidence:

The appellant was employed as a sales assistant in a branded footwear shop in Naas, Co Kildare. From 2005 until the end of 2009 she was employed by the 3^rd named respondent (CM). Her employer informed her that due to financial difficulties he could no longer afford to run the shop. He told her that the Cork based company which supplied the shop with its products would be taking over in January 2010. He told her that her job would not be affected, but that she would be paid monthly. The 1^st named respondent then became her employer. Her previous employer then became an employee of the 1^st named respondent as regional manager for Ireland and so she continued to report to him. CM’s father, the 2^nd named respondent, operated the 1^st named respondent. There was no interruption in business. A part-time employee also continued to work in the shop.

At the end of 2010 the appellant’s employment was terminated due to the shop closing because of poor trading. CM informed her of the termination. He gave her references and a letter for social welfare. The appellant gave evidence that she asked about a redundancy payment, but he said that he had debts and there would not be any redundancy payment. She phoned him in March 2011 and he promised to look into it. He phoned her back and said that it was nothing to do with him and that the 1^st named respondent was her employer. She wrote to a director of the 1^st named respondent and received a response on 16^th March 2011 stating that she was not entitled to a redundancy payment as she was with the company less than two years.

The second named respondent gave evidence. He (NM) is a director of the 1^st named respondent. He disputed the appellant’s redundancy appeal on the basis that she was only an employee of his company for one year. He disputed that any transfer of undertakings occurred. His company held the Irish licence for a particular brand of footwear. The company imported the stock and supplied it to retailers around the country. The company also supplied retail merchandising. When retailers began to struggle with the economic downturn the company offered sale or return on the stock. The company had to to pre-order stock and so had already purchased it. A number of retailers closed resulting in unpaid debts to the company. NM decided that the company would take over a number of the retail units as it had a higher margin of profit than the retailers. The company took over the Naas shop. It already owned the stock and fittings. There was no rent on the property as CM had come to an arrangement with the landlord in which the business only paid rates and service charges. The 1^st named respondent continued to do this. Ultimately it was decided to close the shop due to poor sales.

Determination:

Having considered all of the evidence the Tribunal is satisfied that a transfer of undertakings did take place in this instance and the appellant’s employment transferred from the 3^rd named respondent to the 1^st named respondent. Consequently there was continuity in the appellant’s service from 6^th December 2005 until 31^st December 2010. Accordingly, the appeals against the 2^nd and 3^rd named respondents are dismissed. The Tribunal is satisfied that a redundancy situation occurred and that the appellant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following information:

Date of Birth:                          3^rd August 1965

Date of Commencement:        6^th December 2005

Date of Termination:               31^st December 2010

Weekly Gross Pay:                  €400.00

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

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)