UD487/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                       CASE NO.

EMPLOYEE         (claimant)

                                                                                                                             UD487/2012

Against

EMPLOYER  (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr T. Taaffe

Members:     Mr R. Murphy

                    Ms. E. Brezina

heard this claim at Dublin on 20th June 2013 and 13th December 2013

Representation:

_______________

Claimant(s) :    Liam O’Connell B.L. instructed by Paddy Ferry Solicitor, 141 Howth Road,         Dublin 5

Respondent(s) : Mr Brian O Sullivan, Ibec, Ir/Hr Executive, Confederation House, 84-86                           Lower Baggot Street, Dublin 2.

The determination of the Tribunal was as follows:

At the outset, the respondent company name was amended to reflect the correct respondent in this case.

Preliminary issue

A preliminary matter arose in relation to the respondent company submitting that the Tribunal did not have jurisdiction to hear the case as the claimant was not an employee of the respondent.  

The claimant gave evidence stating that she commenced her employment with DH on 18^th April, 2005. DH was the owner of a catering company which held the contract in a department store restaurant. Following a tendering process, DH lost the catering contract to the respondent company in early 2012.

The claimant told the Tribunal that she worked in the department store restaurant for DH, managing the café. She organised rosters, menus, credit control and acted as liaison with the department store representative. As there was no office in the café, the claimant also worked off site on administration work for the café.   This work amounted to one day a week. The claimant indicated she worked exclusively for the café five days per week in total.

Under cross-examination, the claimant stated that she started in the café at 8am every day and signed in with security. Each day she set up the restaurant, checked deliveries in the kitchen and was involved in food preparation until 12pm. The claimant denied that she was only there once or twice per week to see how things were going. In reply to the Tribunal, the claimant indicated that the security system for signing in belonged to the department store.

The claimant gave evidence pertaining to loss and her efforts to mitigate her loss.

Giving evidence, DH stated that the claimant worked for him for seven years. Her work in the café was initially as kitchen manager, drawing up menus and then involved in front of house work. The claimant worked four days in the café and one day off site on the administration work relating to the café. The claimant worked in the department store café for five years continuous service as Operations Manager.

Under cross-examination, DH indicated that DMcI, Head of Hospitality in the department store did not see eye to eye with the claimant. The e-mail from the Head of Hospitality to the respondent in relation to the claimant was undated. This e-mail was not considered in evidence by the Tribunal as the Head of Hospitality was unable to attend the hearing to give evidence.

The Payroll Administrator told the Tribunal that the reason the claimant was listed on the payroll list under category 5 Office was because Managers were always listed under this category. It did not necessarily mean the employee was office based. She stated that claimant worked off site one day a week to carry out computer work as there was no office facility in the department store for the café.

Respondent’s case

The Director of the respondent company stated in evidence that she requested a list of employees from the previous employer and arranged to meet staff on an individual basis. She had been advised by the department store personnel, that the claimant was not based in the café. The Director stated that she had very little dealings with the previous owner and that the claimant had stated she was a full time employee. The Director indicated that it was clear to her that the claimant was not part of the team.

In cross-examination, the Director stated that she had asked the claimant her position and the claimant indicated that she was based on site but that it was clear to the Director, from talking to others that she was not. The three chefs had stated that the claimant was working in the café. In reply to the Tribunal, the Director stated that one meeting was held with the claimant in relation to her employment. The Director understood that the claimant was based in the off site office and was in and out of the café from time to time.

The Supervisor of the café told the Tribunal in evidence that the claimant was never the Manager in the café and was never part of the weekly roster. The claimant was “in and out” of the café, maybe once a week and sometimes up to three times a week. The Supervisor stated that the claimant acted as a liaison between herself and the previous owner of the café and worked as an administrator.

The Operations Manager of the Department Store gave evidence. She told the Tribunal that the department store had to approve the appointment of all Managers. The claimant did not have approval as a Manager. The Operations Manager dealt with the claimant with regard to remittances and accounting and thought that the claimant had a book keeping role with the café. She indicated that the claimant was not in the café on a regular basis. There was no Manager on site within the café. The claimant had been issued a swipe card by the Department Store as a member of staff.

Determination

The Tribunal carefully considered the evidence adduced and the submissions made. The issue required to be addressed is (a) whether the claimant held a permanent position with her former employers and (b) whether the requirement to provide such a position, if any, transferred to the respondents upon their successful tender for the licence to trade at the agreed location, a licence formerly held by the claimant’s previous employer.

It is common case that at the time of the transfer of this licence, that the only business conducted by them was the business which was the subject matter of the licence bid. It is found and determined that this successful tender resulted a) in the transfer of an economic entity to the respondent and (b) in a transfer of undertaking of permanent employment (T.U.P.E.) vesting in permanent employees of the claimant’s previous employees where appropriate, such employees representing as they did the economic entity referred to. Therefore for the claimant to succeed in her claim she is required to establish an entitlement to a transfer to a permanent position within the respondent company.

The Tribunal firstly finds and determines that the fact that the location of the office where the claimant is found to have partly discharged her duties, differed from the principal location of the business, does not impact in any adverse way on her claim, since the business she was conducting solely related to their business. Secondly, the Tribunal has considered the circumstances relating to the decision of the respondent not to offer the claimant a permanent position. It is of the view that the enquiries that they made concerning the status of the employment of the claimant could and should have included a process involving a joint consultation with both the claimant and the department store, so that the claimant could and should have been given the opportunity to both take note of and respond to the observations being made concerning her alleged employment and if considered necessary by her, the additional opportunity to provide evidence in support of her contention that she held a permanent position prior to the transfer of the licence. In this regard, it is common case that a number of staff at the location of the business, informed the respondent on their enquiry that the claimant did attend and work at the location.

While the Tribunal accepts that there is a conflict of evidence in respect of both (a) the question of whether the claimant held a specific position with her employers and (b) the regularity or otherwise of her attendance at her principal place of alleged employment, it is nevertheless satisfied that she held a position within the company sufficient to be described as permanent. It is therefore found that the claimant was entitled to the benefit of a transfer of undertaking of permanent employment (T.U.P.E) and that the failure of the respondent to effect such a transfer represented an unfair dismissal of the claimant by the respondent.

The Tribunal is satisfied that the claimant made a coherent and sustained effort to mitigate her loss. The Tribunal awards the claimant a sum of €7,500 in respect of her dismissal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)