ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002119

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00002871-001	26/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002871-002	26/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00002871-003	26/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002871-004	26/02/2016

A Worker

Respondent

At: Workplace Relations Commission, Haddington Road, Dublin 4

Date of Adjudication Hearing: 26/05/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complainant has been employed since 15^th May 1982 with a named Transferor and following a Transfer of Undertaking on 10^th December 2015 the Complainant transferred to the Transferee, the Named Respondent. The Complainant was paid €9.50 an hour and she worked 9.5 hours a week. The Complainant’s employment was terminated by the Transferee on 12^th December 2015.

The Complainant referred a complaint to the Workplace Relations Commission on 26^th February 2016 alleging the Respondent had not paid her Minimum Notice on termination of her employment – had not paid her the Correct Redundancy Payment on termination of her employment and a complaint under the Transfer of Undertaking.

The Complainant had also lodged a complaint under the Unfair Dismissals Act but this complaint was withdrawn at the Hearing.

Summary of Complainant’s Position.

The Complainant had worked as a Cleaner in the Public House since 1982 until her dismissal in December 2015. The Complainant was called to a meeting at which she was informed by the Transferor that the Public House was being sold but that the Complainant and all other Employees would be transferring to the Transferee, the Respondent. She was provided with a letter dated 10^th December 2015 confirming this from the Transferor. The Public House closed later on the same date.

The Complainant was called to a meeting a few days later with a named Representative of the Transferee, the Respondent Company, at which she was informed that she was to be made redundant. The Complainant was given cash of €1771.00 on the day. She was requested to sign receipt of this her Redundancy Payment.

Some 4 weeks later she received a phone call from the Respondent to inform her there had been a mistake in her Redundancy Payment and she was due an additional €1000.00 The Representative of the Respondent sought to arrange a meeting with the Complainant in the Public House. She refused and the Representative of the Respondent arrived at the Complainant’s home and handed her €1000.00 in cash. The Complainant stated that she had not been paid her correct redundancy and she refused to accept the cash of €1000.00. However the Representative of the Respondent left the cash on the hall table and left. She did sign receipt of the cash. She again stated she had not been paid her correct redundancy. This was disputed by the Respondent. The Complainant went to Revenue where she received confirmation of her employment with the Transferor and the Transferee from 1982. – Copy provided to the Hearing.

The Complainant also alleges that only the two Cleaners employed in the Public House were made redundant. She stated that based on her service she was unfairly selected for redundancy.

The Complainant did not receive notice or payment in lieu of notice andsis seeking payment of 8 weeks Minimum Notice.

The Complainant also alleges that the Transfer was not conducted in accordance with the legislation under the Transfer of Undertaking Regulations.

Summary of Respondent’s Position.

The Respondent is a Development Company and has never managed or operated a Public House. The Respondent did successfully bid on the Public House at auction and the sale was completed on 10^th December 2015. The Complainant was made redundant in December 2015. Her Redundancy Payment was discharged by the Respondent.

Transfer of Undertaking: The Respondent denied there had been a Transfer of Undertaking as defined by S.I. 131/2003 – European Communities (Protection of Employees on Transfer of Undertaking) Regulations, 2003. The former Employer of the Complainant wrote to the Respondent Company concerning the redundancy calculations in respect of all the employees as they asserted that a Transfer of Undertaking had occurred. The Respondent discharged the redundancy payments.

On 7^th December 2015 the Respondent wrote to the alleged Transferor seeking copy of the employment contracts. These were not provided. While maintaining there had been no Transfer of an Undertaking, nonetheless the Respondent felt they had a moral if not a legal obligation to the employees. They asserted that if a Transfer of Undertaking did occur it arose by operation of law and only after the alleged Transferor ceased trading in the Public House. Therefore they cannot be held liable for their failure to engage in pre-transfer steps, as outlined in the Regulations. They further argued that if a Transfer of Undertaking occurred the redundancies of the staff was necessary based on economic, technical and organisational reasons

Redundancy Payments Act. The Respondent undertook to discharge the redundancy payments to the employees as they acknowledged the employees had been deceived by the alleged Transferor. They asserted they had paid the correct redundancy payment to the Complainant. They relied on the information supplied to them by the Alleged Transferor.

Minimum Notice: The Respondent asserted they had Paid minimum notice to the Complainant.

On the basis of the evident and written submissions from both Parties I find as follows:

- The Respondent confirmed at the Hearing that they had “ended up owning the namedPublic House” and this was confirmed as being from 10^th December 2015.

- Both Parties confirmed that the Complainant had been informed by letter from her previous Employer that a Transfer of Undertaking had occurred and that all her terms and conditions of employment would transfer to the Respondent Company effective from 10^th December 2015.

- Both Parties also confirmed that it was the Respondent Company which terminated the employment of the Complainant and paid her Redundancy.

- Both Parties confirmed that the Respondent paid the Complainant redundancy of €1771.00 on 15^th December 2015 and a further €1020.00 on 8^th January 2016.

- However I note that in the statement signed by the Complainant on 15^th December 2015 the payment of €1771.00 was stated as follows: “received a redundancy package of €1,771 for redundancy entitlement, pay in lieu and holiday pay due at 3pm on the 15^th December2015”. The Respondent did confirm at the Hearing that the payment of €1771.00 was solely paid in respect of redundancy only... Therefore I find that the Complainant was not paid her Minimum Notice due on termination of her employment. The Complainant is due to be paid 8 weeks Minimum Notice in accordance with Section 4 (2) of the Minimum Notice and Terms of Employment Act, 1973= €720.00

- The Complainant had a total of 33 years continuous service. She was paid €2791.00 redundancy payment from the Respondent. Both Parties confirmed at the Hearing that the Complainant would be entitled to payment of a further €3239.00 based on 33 years’ service. I find that the Complainant is entitled to payment of additional redundancy payment of €3239.00 in accordance with the Redundancy Payments Act...

- S.I. No. 131 of 2003 provides at Regulation 3 that the Regulations apply to any transfer of an undertaking, business or part of an undertaking or business from one employer to another. The Respondent confirmed at the Hearing that the Public House business transferred to them on 10^th December 2015. Both Parties confirmed at the Hearing that the Public House continues to operate after December 2015. Therefore by operation of the law I find there was a Transfer of Undertaking on 10^th December 2015. Regulation 5 provides as follows: “(1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the Transferor…..and such a dismissal, the grounds for which are such a transfer,…..is prohibited. (2) Nothing in this regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce”. The Respondent provided information to the Hearing that the redundancies were necessary on the basis that the Respondent is a development company and did not have the resources to operate the Public House – that they suffered a financial loss in acquiring the Public House and they later rented the Public House to another operator to open the Public House. I find that the evidence advanced by the Respondent in their written submission and at the Hearing means that a genuine redundancy situation existed at the time the Complainant was made redundant.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I decide as follows:

Minimum Notice and Terms of Employment Act, 1973. I find that the Complainant is entitled to Minimum Notice of 8 weeks in accordance with Section 4 (2) of the Act. I direct the Respondent to pay the Complainant the sum of €720.00 within 42 days of the date of this Decision.
Redundancy Payments Act, 1967. I find the Complainant is entitled to payment of the balance of her Redundancy entitlements of €3239.00. I direct the Respondent to pay the Complainant the sum of €3239.00 within 42 days of the date of this Decision.
S.I. 131/2003 – European Communities (Protection of Employees on Transfer ofUndertakings) Regulations, 2003. On the basis of the evidence presented I find that the complaint is not well founded. The Respondent did not breach the Regulations.

Date 27^th July 2016