RP690/2012 

                                    EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                             CASE NO.

EMPLOYEE                                                                                                              RP690/2012                                 

against

EMPLOYER

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms J.  McGovern B.L.

Members:     Mr T.  O'Grady

                     Mr A.  Butler

heard this appeal at Dublin on 13th August 2013

Representation:

Appellant : 

Respondent : 

The decision of the Tribunal was as follows:

It was common case that the appellant’s employment with the respondent was terminated by way of redundancy in May 2011. The appellant contended that her redundancy payment calculation should have been based from April 1998 when she commenced employment with a previous employer. In this regard it was submitted that a transfer of undertaking occurred when ownership of the coffee shop changed in early 2007 and her employment continued. The respondent’s position was that the appellant was only an employee with it from February 2007 onwards.

Appellant’s case

The appellants previous employer (MM) gave evidence to the effect that the appellant was employed by a previous owner on 1^st April 1998 which ran the coffee shop. The business and licence to run the coffee shop (granted by the Office of Public Works) was ultimately sold to the respondent in early 2008. MM stated that when she sold the business she was given assurances by SW, the new owner, that he would retain the staff including the appellant. On cross examination it was put to MM that no such assurances were given but rather SW said he would ‘put in a word’ for the employees to which MM did not agree. No formal documents were executed in terms of the employees and no legal advice was taken concerning a Transfer of Undertaking. No formal meeting was held with the employees of previous owner and no notification was given concerning any potential redundancy from previous owner.

The appellant herself gave evidence and was under the impression that she was an employee with the coffee shop on a continuous basis from 1998 to 2011. She was not aware of any transfer that affected her employment rights in 2007 and was never given any written notification of the changeover. She re-interviewed for her job in 2007 with the respondent and was given the job but was not aware that she had a new employer so to speak. She was shocked when she received a much smaller redundancy payment than she expected in 2007.

Respondent’s case

SW gave evidence on behalf of the Respondent. He operated the respondent and when MM was considering retiring he thought it opportune that he would take over the coffee shop which was adjacent to the gift shop in building. When the respondent bought the business and licence for the coffee shop he gave evidence that he told MM that he would ‘put in a word’ for the old employees but nothing was guaranteed. No formal documents were executed in terms of the employees and the purchase price covered only the licence and fixtures and fittings for the coffee shop and not any potential redundancy payment for the old employees. He interviewed the appellant in 2007 and employed her on a new contract from February 2007 up to the date of redundancy.

On cross examination he was questioned as to whether or not he offered any guaranteed employment to the appellant following a conversation with MM. He indicated that he did not as it was never his intention to include any employment rights in the payment made to MM.

Determination

Having heard and considered the adduced evidence the Tribunal cannot find that a Transfer of Undertaking took place in this case. Any such application to this Tribunal is statue barred and should have been made as far back as 2007 following the sale of the coffee shop to the Respondent. Both sides seemed to have conducted the appellant’s situation in a casual and informal manner at the time of the changeover in January/February 2007. The appellant’s former employer and directors were remiss in not promoting the interests of the appellant. Conversely, the respondent through their actions at the time neglected to fully explain to the appellant how it regarded her as an employee. The appellant’s current predicament is as a consequence of this unprofessional and lax arrangement.

For the avoidance of doubt and in the interests of clarity the Tribunal makes the following determination:

The Tribunal notes that both parties accepted a redundancy situation occurred in this case.  The appeal under the Redundancy Payment Acts, 1967 to 2007 is allowed based on the following:

Date of Birth :                  n/a 

Date of Commencement  1 February 2007

Date of Termination:       27 May 2011

Gross Weekly Wage:      €494.52

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

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)