RP729/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                            CASE NO.

EMPLOYEE  -appellant

                                                                                                     RP729/2012

against

EMPLOYER  -respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr P.  O'Leary B L

Members:     Mr D.  Peakin

                     Mr S.  O'Donnell

heard this appeal at Dublin on 27th June 2013

Representation:

Appellant:      

Respondent:   

Background:

This appeal was heard simultaneously with RP647.12

It was the respondent’s case that the appellant volunteered for redundancy via an RP9 form but that in any event the appellant did not have the requisite two years continuous service to qualify for a redundancy payment.

It was the appellant’s case that he did have the requisite service by virtue of a transfer of undertakings that had occurred during his employment.  The appellant relied on a letter written by a former human resources manager on behalf of the respondent company.  This letter to the appellant was written in August 2011 and outlined that the reason for the correspondence was to inform the appellant how the “..transfer of undertakings will happen.”  Under the process the appellant was informed that his terms and conditions would remain intact and his employment would be continuous and “..will carry forward any and all accrual rights and claims to your new role.” 

This was disputed by a director of the respondent company who outlined that a sale share agreement had taken place but not a transfer of undertakings.  The appellant was initially employed by another company.  In 2011 the respondent entered into a sale agreement with this company and bought the shares of the company.  Subsequently, in July 2011 the trade of the other company transferred to a third party.  Consequently, the appellant’s employment was coming to an end.  The respondent company offered employment to the appellant and he was employed by the respondent company from 12 August 2011 to March 2012 when he was placed on lay-off. 

During cross-examination the director stated that the human resources manager may have used the phrase transfer of undertakings “loosely” when writing the letter of                                                                                                                                                                                                                                                  17 August 2011.  The agreement document between the two companies was opened to the Tribunal.  

Determination:

The Tribunal considered S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and the agreement document between the two companies.  The Tribunal is satisfied that clearly a transfer of undertakings occurred given that the respondent bought the business when they bought the company’s shares.  It is clear that the regulations apply to the transfer of any part of the business as stated in Regulation 3 –

Accordingly, it follows that the employment of the appellant was continuous.  The appellant has the requisite two years’ service and is entitled to a lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:

Date of birth:                                                              3 February 1978

Date of commencement:                                             10 October 2005

Date of termination:                                                    13 April 2012

Gross weekly pay:                                                       €490.28

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)