EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Magdalea Sedlak RP954/2014
- Appellant
against
O’Reilly Mescall Limited T/A Reads Print & Design
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: James McAuliffe, Donal T. McAuliffe & Co., 57 Merrion Square, Dublin 2
The decision of the Tribunal was as follows:-
Background:
The appellant was employed from the 28th September 2009 with a company (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 (the respondent in this matter- 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 she was informed by C Ltd that she would transfer to the new employer ORM Ltd. She went on annual leave but on her return she discovered she had not been rostered for any working hours with ORM Ltd. She emailed ORM Ltd and was informed the company had not taken on all the staff from C Ltd. The appellant stated that as she had not received her P45 she attended the office of C Ltd and informed them what had occurred with ORM Ltd. C Ltd offered her a position in their branch in Stillorgan. The appellant told the Tribunal that she had not accepted this position due to travel constraints and the fact she had two young children.
On advice from a solicitor she lodged a claim for redundancy against C Ltd and ORM Ltd.
Respondent’s Position:
The witness for C Ltd gave evidence stating the appellant had no claim against his company as there was a transfer of undertakings and all staff had transferred to the new employer – ORM Ltd.
The witness for the respondent (ORM Ltd.) stated that no transfer of undertaking s took place and therefore the appellant could take no claim against the named respondent.
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”.
Both companies failed in their responsibilities to their staff, as outlined, in S.I. No. 131/2003, to allow for a structured transfer would have avoided this situation.
The outgoing company was of the clear understanding that the staff was to be employed by the incoming company – ORM Ltd. There was an exchange of emails between both parties regarding this; no discussions took place with the staff at that time. These emails clearly show that discussion on staff took place between both companies and the staff transferring to ORM Ltd.
Both companies had legal assistance in the transferring of these premises and therefore, there can be no excuse that they were not aware of S.I. No. 131/2003.
I am of the opinion that the staff members who were employed by ORM Ltd. Should transfer on the same terms and conditions as existed before the date of transfer as is set out in S.I. 131/2003.
ORM Ltd. Failed to apply the provisions of the said S.I. as they failed to employ the appellant.
When she contacted her former employer, C. Ltd. they said to her that they were surprised that she had not been employed by ORM Ltd. and advised her to claim redundancy from ORM Ltd. ORM Ltd refused to pay the redundancy. She discussed this matter further on two occasions with C Ltd. who emailed her six weeks later to offer her employment in their store in Stillorgan. This offer had to be declined as it posed serious difficulties for her as a mother with two young children and the logistics would make it impossible for her to work in Stillorgan.
In my opinion this matter is for the appellant and not for comment by any other party. To expect the appellant to take up this employment would be gross interference in her family affairs.
In view of the forgoing, I am of the opinion that there was no transfer of the appellant as C Ltd. Took responsibility for her employment. I conclude that the appellant is entitled to her redundancy payment from C Ltd.
Majority Decision:
By a majority decision the Tribunal finds that a redundancy situation did not occur. The claimant was never an employee of the respondent and therefore has no claim in this regard.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)