EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Marcin Stachowiak RP902/2014
- Appellant
against
Callistoy Limited T/A Bookstation
Respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. J. McGovern BL
Members: Mr. L. Tobin
Mr. P. Trehy
heard this appeal at Dublin on 14th January 2016
Representation:
Appellant: In Person
Respondent: O'Shea Legal, 3 Chancery Place, Dublin 7
The decision of the Tribunal was as follows:-
Background:
The appellant was employed from the 25th September 2006 with the respondent (C Ltd). On the 19th September 2014 the General Manager of C Ltd. informed all staff the store would close the following Monday and a new employer (ORM Ltd.) was taking over the business. ORM Ltd opened for business on the 13th October 2014. Some staff were rehired and issued new contracts.
Appellant’s Position:
The appellant stated he was informed by C Ltd that he would have three options – to be made redundant, to remain working for C Ltd but in a different location or to transfer to ORM Ltd.
The appellant told the Tribunal that no one approached him to ascertain which option he would chose. He spoke to the General Manager for the respondent asking what would happen to him. He then spoke to the owner of ORM Ltd. He commenced employment with ORM Ltd signing a contract of employment on the 28th October 2014. He resigned his position with ORM Ltd on the 8th February 2015.
Respondent’s Position: (C Ltd)
The witness for C Ltd stated the appellant had no claim against the respondent as there had been a transfer of undertakings and all staff had transferred to the new employer – ORM Ltd.
The appellant told the Tribunal that no one approached him to ascertain which option he would chose. He spoke to the General Manager for the respondent asking what would happen to him. He then spoke to the owner of ORM Ltd. He commenced employment with ORM Ltd signing a contract of employment on the 28th October 2014. He resigned his position with ORM Ltd on the 8th February 2015.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced in this matter.
Mr. Trehy’s Dissenting Opinion:
The appellant was employed by C Ltd. C Ltd. transferred its business in Bray to ORM Ltd. One week prior to the transfer the outgoing company C Ltd. informed the staff that they would transfer to the new company with the same terms and conditions as they enjoyed with C Ltd.
S.I. No 131/2003 – European Communities (Protection of Employees on Transfer of undertakings) Regulation 2003.
Both companies totally disregarded the provisions of S.I. No 131/2033 at Section 4 (1) – “The transferor’s rights and obligations arising from a contract of employment shall, by reason of such transfer, be transferred to the transferee”.
I am of the opinion that the appellant who was employed by ORM Ltd transferred on the same terms and conditions as existed before the date of transfer as is set out in S.I. 131/2003 therefore he is not entitled to a redundancy payment from this named respondent - C Ltd.
Majority Decision:
The sole claim before the Tribunal is one for redundancy as there is no formal claim pursuant to the transfer of undertaking legislation nor is ORM Ltd a party to these proceedings. It was clear from the evidence that the claimant was employed with the new employer on new terms and conditions and did not have the benefit of continued service in his new role. No formal documentation demonstrating a transfer of undertaking was opened to the Tribunal therefore it is difficulty to accept the respondent’s position. In all of the circumstances by a majority decision the Tribunal finds that the appellant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria:
Date of Commencement: 25 September 2006
Date of Termination: 13 October 2014
Gross Weekly Pay: €391.50
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)