EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF:
Hanna Wilczynska -appellant 1
RP32/2013 & MN591/2013
Marcelina Orlikowska - appellant 2
RP39/2013 & MN622/2013
Ruslan Todorchuk -appellant 3
RP179/2013 & MN595/2013
Susan O'Connor -appellant 4
RP803/2013 & MN599/2013
Fiona Wickham -appellant 5
RP804/2013 & MN600/2013
Martina O'Reilly -appellant 6
RP820/2013 & MN610/2013
Maria Rice -appellant 7
RP821/2013 & MN611/2013
Katarzyna Maj -appellant 8
RP822/2013 & MN612/2013
Eimear Tyrell -appellant 9
RP823/2013 & MN613/2013
Sinéad Tyrell -appellant 10
RP824/2013 & MN614/2013
Kerry Mimpress -appellant 11
RP825/2013 & MN615/2013
Ana Nistor -appellant 12
RP826/2013 & MN616/2013
Marzena Dutka-Smetek -appellant 13
RP827/2013 & MN617/2013
Sarah O'Brien -appellant 14
RP828/2013 & MN618/2013
Lucian Simion Nistor -appellant 15
RP829/2013 & MN619/2013
Cosmin Costina -appellant 16
MN620/2013
Lesley Bates -appellant 17
RP970/2013 & MN716/2013
Crina Delia Popa -appellant 18
RP976/2013 & MN719/2013
against
Wecater Limited T/A Cappuccinos (In Liquidation) -respondent
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: Mr. T. Ryan
Members: Mr J. Browne
Mr F. Dorgan
heard this appeal at Wexford on 30th May 2014
Representation:
Appellants: The appellants were present in person with the exception of appellants 12, 14, 15, 16 and 18. For these appellants there was no appearance or representation.
Respondent: No appearance or representation on behalf of the liquidator.
Background:
The appellants were employed by the respondent in various roles and from various dates. It was the appellants’ evidence that they were informed on Tuesday, 28 August 2012 that the premises was closing for renovation. The appellants knew nothing further until they were told to return to the premises three days later. The appellants continued to carry out the same roles,and in the same location. They were unsure as to the identity of their employer but thought perhaps they were working for the liquidator. In October 2012 they believed the respondent was taken over by another company. They were informed that the liquidator of the respondent company would complete the relevant paperwork and RP50s on their behalf.
Determination:
The Tribunal dismisses the appeals by appellants 12, 14, 15, 16 and 18 under the Redundancy Payments Acts, 1967 to 2007 (“the Acts”) and the Minimum Notice and Terms of Employment Acts, 1973 to 2005, for want of prosecution.
In relation to the other appellants the Tribunal considered the definition of Redundancy under the Acts and in particular Section 7.
Section 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 monies, 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 ……
(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 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) or to be done by other employees,
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 henceforth 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 being doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.
The Tribunal must be satisfied that where an employee is dismissed by reason of redundancy that there must be a redundancy and the redundancy must be the main reason for dismissal.
Section 7(2) is a very broad definition of redundancy and confers a redundancy situation on a wide variety of terminations of employment. Business closures, restructurings and a change of job requirements are three examples of where a redundancy can occur.
The appellants do not have to satisfy all the criteria in Section 7(2) (a) to (e) inclusive. All they have to do is satisfy one. This is clear from the first part of the section which states: … “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, the dismissal is attributable wholly or mainly [due] to” [the redundancy].
On a strict interpretation of Section 7 it can be argued that the appellants qualify for redundancy payment based on the criteria set out in 7 (2) (a) as the employer has “ceased to carry on business for the purposes for which the employee was employed”…or “has ceased to carry on that business in the place where the employee was so employed.” However the Tribunal cannot blindly ignore the facts of the case and the evidence before it. The reality of the situation, which the Tribunal notes, is that the business is being carried on in the same place, with the employees doing the same work, albeit for a different employer.
In St Ledger v Frontline Distributors Limited Developments Ireland Limited [1995] ELR 160 at 160-162 the statutory definition of redundancy was considered to have two main characteristics: “impersonality” and “change.” Impersonality runs throughout the five definitions of the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person lose his job. Change runs through all five definitions of redundancy. This means change in the workplace. The most dramatic change of all is a complete closedown. Change may also mean a reduction in the needs for employees, or a reduction in number. Definition (d) and (e) involve change in the way work is done or some other form of change in the nature of the job. Under these two definitions, change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind and that is the only meaning which can be put on the words “other work.” More or less work of the same kind does not mean “other work” and is only quantitative change.”
The impersonality of redundancy was emphasised by Charleton J in JVC Europe Limited [2012] E.L.R. 70, where he described it as the “economic or technological reorienting of an enterprise whereby the work of the employees needs to be shed or to be carried out in an entirely different manner.”
The appointment of a Liquidator generally constitutes a notice of dismissal of the company’s employees to commence on the date of the order. The respondent company entered into liquidation on 29 August 2012.
However if the Liquidator retains employees on the same terms and conditions as the original contract the effect of such appointment can be waived in respect of the continuity of the employee’s appointment. In the case before this Tribunal none of the employees lost their jobs. The jobs were not “shed” as required following on from the JVC case. Each employee continued in the same position he/she held before the Liquidation. There was no redundancy and no employee lost his/her job.
All the appellants continued on in their original jobs at the same location virtually missing no time from work, or at most a day or two.
The Tribunal considered if this was a Transfer of Undertaking. The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) apply to any transfer of an undertaking, business or part of a business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. The Regulations implement an EU Directive aimed at safeguarding the rights of employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger.
The Tribunal considered the definition of a “Transfer” for the purposes of the Regulations, Transfer means the transfer of an economic entity which retains its identity. The Tribunal is satisfied that there was a transfer of undertakings within the meaning of the Regulations.
After careful consideration of Section 7 (a) to (e) inclusive the Tribunal determines that a genuine redundancy did not arise in the case before it. Simply put, no position was made redundant. The appeals under the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005, fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)