RP152/2014

EMPLOYMENT APPEALS TRIBUNAL

 CASE NO.

RP152/2014

APPEAL(S) OF:                                                                                                   

Angela Van Dykhuizen - appellant                                                                                                               

against

Weardrobe  - respondent

under

REDUNDANCY PAYMENTS ACTS 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr J.  Revington S.C.

Members:     Mr J.  Horan

                     Mr A.  Butler

heard this appeal at Dublin on 29th May 2015

Representation:

_______________

Appellant(s) :        In Person

Respondent(s) :    Mr Gearoid Ryall, Mannix & Co Solicitors, Tralee, Co Kerry

Summary of Case

The Tribunal heard evidence from the appellant that she commenced working for the respondent business in 2006. The business operated as a ladies fashion store in Co Kerry and she was employed as a sales assistant. The business operated as a partnership and was owned by (S) and (M).

She gave evidence that in 2012 (S) opened a similar in Dublin and she (the appellant) accepted the offer of the position of store manager at that store. She told the Tribunal that the transfer of her employment to the Dublin store was seamless. She did not receive a P45 when she left the Kerry store and clothing was regularly moved between the two stores. She was never given a contract of employment in either store. She accepted that (M) was not involved in the management of the Dublin store but she was involved “in the background” in the Kerry store.

The Dublin store subsequently closed for business in January 2014 and she was made redundant. She has never received a redundancy payment which she believes is her entitlement as she understood that she was in continuous employment since 2006.

(S) gave evidence that that she opened a partnership business with her sister (M) in Co Kerry in 1997, a business which continues to trade to date. The appellant was employed as a sales assistant in the store. In July 2012 she (the witness) opened a store in Dublin. She was the sole owner of this business and her sister (M) had no involvement in the Dublin store. She employed the appellant as manager of the Dublin store from July 2012 upon which her (the appellant) employment as a sales assistant in the Kerry store ceased. (S) told the Tribunal that the appellant was P45’d from the Kerry store. She described the Dublin store as a totally separate venture from the Kerry store. She told the Tribunal that the Dublin business venture was a disaster and it subsequently closed with losses in January 2014.

Determination

The Tribunal, having considered the relevant oral and documentary evidence submitted is satisfied that the two businesses operated by (S) were separate legal entities, (1) a partnership and (2) an individual/sole trader. This was confirmed to the Tribunal by documentation showing separate bank accounts, separate VAT registrations and separate tax documentation.

The Tribunal is satisfied that the appellant was employed by both entities at different times, namely, from 2006 to 2012 by the partnership entity and from July 2012 to January 2014 by the sole trader/individual entity.

The Tribunal finds that it was from the sole trader/individual entity that the appellant was made redundant. As she did not have 104 consecutive weeks of employment with this employer the Tribunal finds that she is not entitled to statutory redundancy and therefore her claim under the Redundancy Payments Acts 1967 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)