EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Simon Walton -appellant
RP5/2014
against
Walton Logistics Limited (In Voluntary Liquidation) -respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Hennessy
Ms S. Kelly
heard this appeal at Kilkenny on 2nd April 2015
Representation:
Appellant: Mr. Eoghan O’Sullivan B.L. instructed by Poe Kiely Hogan, Solicitors,
21 Patrick Street, Kilkenny
Respondent: Mr Alan Haugh, A & L Goodbody, Solicitors, IFSC,
North Wall Quay, Dublin 1
Background:
The respondent contested the appellant’s entitlement to a redundancy payment on grounds that there had been a transfer of undertakings from the respondent company to TWT and the appellant was entitled to employment with the transferee.
It was the appellant’s case that the transfer of undertaking regulations applied only if a person was employed at the time of the transfer. As per the respondent’s T2 the date of transfer was given as January 2013. It was the appellant’s case that the redundancy situation arose in December 2012 prior to the liquidation of the respondent company.
SD of the liquidator’s office gave evidence that she attended the initial creditors’ meeting on 23 January 2013 following the appointment of the liquidator. Minutes of this meeting were opened to the Tribunal. At this meeting JW, a director of the respondent (the director), explained to the creditors that the main reason the company had failed was due to the loss of a significant contract. He also detailed when asked by a Revenue official that eight of the company's trucks were sold. Four of these were sold to TWT. The respondent company did not own any trucks at the date of liquidation.
The phone number for the respondent company became the phone number for TWT and this number was used by the liquidator’s office to contact the appellant after the appointment of the liquidator. The liquidator understood that part of the contract lost by the respondent transferred to TWT prior to the liquidation. The liquidator’s office also received emails from the appellant on behalf of TWT and these were opened to the Tribunal. The emails received from the appellant usually cited an email address from TWT. An email was subsequently received from the appellant using a different email address in December 2012 and seeking a redundancy payment.
A list of TWT employees and the various dates of their commencement in the employment shows that 19 of these had been working with the respondent. All other of the respondent’s employees, except the appellant, were paid redundancy. On receipt of legal advice the liquidator deemed that a transfer of undertakings had occurred.
During cross-examination it was put to the witness that the appellant’s P45 showed a date of termination of 31st December 2012 but the witness stated this document was not prepared by the liquidator’s office. SD confirmed receiving a document from the appellant on the day of the Tribunal hearing showing that he was registered as self-employed from 1 January 2013.
It was the appellant’s evidence that he was employed with another company for 32 years until January 2006. On or around 31 January 2006 the appellant commenced employment with James Walton t/a Walton Transport, a sole trader, which was operated by his brother. The business had around 40 employees and 34 trucks at that time. The appellant was responsible for customer accounts and administration.
In late 2009 there was a transfer of undertakings from James Walton t/a Walton Transport to the respondent and all employees transferred across but the transferor retained some assets (trucks). One particular customer (KF) comprised around 65% of the respondent’s business. There were three components to the KF work. The next major customer represented 6% of its business.
In June 2012 the respondent was informed that it was unsuccessful in its tender to retain its most significant customer (KF). The respondent was given due notice that the contract with KF would come to an end in or around October/November 2012. The focus of the respondent company at that time was to try to replace the lost business.
In or around June 2012 another entity DFDS put in a tender and won two components of the KF contract. In late summer or early autumn 2012 Thomas Walton (son of James Walton) left the respondent and set up his own transport business, Thomas Walton Transport (TWT). Thomas Walton obtained a haulage licence from the Department of Transport. DFDS subcontracted TWT in late 2012 to perform one component of the KF contract on different terms and conditions to those that had been enjoyed by the respondent.
On 31 December 2012 the respondent ceased trading. The appellant received a P45 as did the other employees. The appellant registered as self-employed with Revenue in January 2013 and as such did some work in relation to the liquidation for the respondent and he also did some work for JW t/a WT which was still operating, leasing the trucks and it had retained at the time of the transfer in 2009. The appellant raised invoices and charged on a monthly basis for this work. The appellant later filed a VAT return in relation to these earnings.
The appellant’s position was that he had no involvement whatsoever in TWT. In relation to the e-mail address he utilised he stated that if an email came from a TWT domain it was associated with work that JW of the respondent charged him with regarding the liquidation. There was an issue regarding €300,000 between the between TWT and the respondent and the appellant also worked on this issue.
In late September 2013 the appellant changed his employment status and became an employee of JW t/a WT. He became responsible for planning and strategizing to extend the business overseas. This was successful as the business now operates 50% of its business in Bulgaria. The business is fully owned by JW.
The liquidator’s legal representatives opted not to cross-examine the appellant.
Determination:
The respondent ceased trading on 31 December 2012. It subsequently went into voluntary liquidation on 23 January 2013. Of the respondent’s 45 employees, at the time it ceased trading, 19 found and commenced employment with TWT, on dates between 28 December 2012 and 21 January 2013. The appellant was not one of these. All the remaining employees of the respondent, except the appellant, received a redundancy payment. The Tribunal is satisfied that the appellant never became an employee of TWT either by way of transfer of an undertaking or otherwise.
Accordingly, the Tribunal finds that the appellant is entitled to a lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:
Date of Commencement: 3 January 2006
Date of Termination: 31 December 2012
Gross weekly pay: €932.69
Please note that a statutory ceiling of €600.00 applies to all payments from the Social Insurance Fund.
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)