ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000487

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 23/02/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

2. Procedure:

2.1 On the 13th October 2015, the complainant referred complaints to the Workplace Relations Commission under a number of employment law statutes, including the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, the Employment Equality Acts, the Organisation of Working Time Act, the Maternity Protection Act, the Payment of Wages Act, the Terms of Employment (Information) Act and the Minimum Notice and Terms of Employment Act. The complaints were scheduled for adjudication on the 23rd February 2016.

2.2 In accordance with Section 41(4) of the Workplace Relations Act, 2015following 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.

2.3 In advance of the adjudication hearing, the representative of the complainant corresponded (letter dated 10 December 2015) with the Workplace Relations Commission to indicate that they were withdrawing the claims made pursuant to the Employment Equality Acts. He outlined that the claims under the Employment Equality Acts were to be pursued through the Circuit Court and they were pursuing the other complaints before this adjudication. The withdrawal of this complaint was confirmed at the hearing.

2.4 At the outset of the hearing, it became apparent that there was no appearance by or on behalf of the respondent company. I verified that it had been served with notification of the adjudication and having been satisfied of this, I proceeded with the hearing in its absence.

2.5 In a preliminary submission the representative for the complainant stated that all the complaints for adjudication had been submitted previously to the Workplace Relations Commission with another respondent cited as the employer. These complaints were the subject of an Adjudication Officer's hearing which had taken place on 6th January 2016. The representative stated that the submission he would make today was virtually identical to that made at the previous hearing; the only difference being the respondent cited.

3. Attendance at Hearing:

3.1 The complainant attended in person and was represented by her solicitor. There was no appearance by or on behalf of the respondent.

4. Complainant’s Submission and Presentation:

4.1 The complainant's representative provided a written submission. The complainant commenced employment with the respondent in November 2014 as a sales assistant. The respondent operates a retail premises in south Dublin. The complainant informed the respondent of her pregnancy probably sometime in May 2015. Later in May 2015, the complainant was given written terms of employment. The complainant signed the document and dated it the 30th May 2015. The contract provides that her employment commenced on the 8th December 2014.

4.2 The complainant recalls that on either 15 or 20 August 2015, the manager of the shop, casually informed staff that he would be putting the company into liquidation “to avoid his debts”. The complainant and her colleagues were advised that the business would continue at the same location and only the name of the business would change.

4.3 The complainant was assigned to Health and safety Leave from 25th August 2015

4.4 The complainant submitted that she learnt from conversations with existing shop staff that the shop continues to operate but the business has transferred from the respondent to a de facto partnership of two named individuals. The transfer took place on the 21st September 2015. She received no formal notification of the transfer and was not consulted about it.

4.5 In or around 30th September the complainant met with one of the directors of the company and enquired about returning to work after her maternity leave. She was told he would talk to one of the other directors about this.

4.6 On 1st October 2015 the complainant was issued with a P45 noting a cessation date of 24 August 2015.

4.7 The complainant was not provided with any formal notices, and was not provided with any information in relation to her employment being transferred to the new business which she believes was transferred from the original owners to a new company operated by the same people.

5. Respondent’s Submission and Presentation:

5.1 The respondent did not attend the adjudication and did not make submissions in relation to the complaints submitted.

6. Findings and issues for decision:

6.1 CA-00000205-001: The complaints made in relation to alleged breaches of the Employment Equality Acts were withdrawn by the complainant, in order that they could be pursued in the Circuit Court. I, therefore, have not considered these aspects of the complaint and nor have I made findings in relation to them.

6.2(i) CA-00000205-002: The purpose of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 is to protect the contractual rights of employees in respect of their employment in the event of their transfer to another employer of the business, or part of the business in which they are employed, as a result of a legal transfer or merger. In this case it was submitted that a transfer took place 21st September 2015 and there was no evidence to say a transfer did not take place. The Regulations state that:

Dismissals and termination of employment 5. (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 or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or transferee is prohibited."

6.2(ii) From the evidence submitted and from the confluence of the dates it would seem to me that there is a causal link between the transfer of the business and the termination of the complainant's employment which is prohibited by the Regulations.

6.2(iii)As per the Regulations (10. (5) (c) ) such a contravention may, if an Adjudication Officer deems it just and equitable, require the employer to pay an award of compensation not exceeding 2 years remuneration, in respect of an employee's employment calculated in accordance with Regulation made under section 17 of the Unfair Dismissals Act 1977. The Regulations stipulate that:

"and a reference in this paragraph to an employer shall be construed, in a case where ownership of the relevant undertaking or business, or part concerned of that undertaking or business, of the employer changes after the contravention to which the complaint relates occurred, as a reference to the person who, by virtue of the change, becomes entitles to such ownership."

6.2(iv) I find that the respondent, the transferee, did not comply with Regulation 5 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations. As the claimant was unavailable to work due to Health and Safety Leave, pursuant to Regulation 10, I award the complainant the amount equivalent to four weeks’ remuneration, i.e. €1,330.

6.3 CA-00000205-003: This complaint relates to a period before the transfer took place and therefore to the previous employer and thus is not a matter for this Decision.

6.4 CA-00000205-004: This complaint relates to a period before the transfer took place and therefore to the previous employer and thus is not a matter for this Decision.

6.5 CA-00000205-005: This complaint relates to a period before the transfer took place and therefore to the previous employer and thus is not a matter for this Decision.

6.6 CA-00000205-006: This complaint relates to a period before the transfer took place and therefore to the previous employer and thus is not a matter for this Decision.

6.7 CA-00000205-007: This complaint relates to a period before the transfer took place and therefore to the previous employer and thus is not a matter for this Decision.

6.8 CA-00000205-008: This complaint relates to a period before the transfer took place and therefore to the previous employer and thus is not a matter for this Decision.

6.9 CA-00000205-009: This complaint relates to a period before the transfer took place and therefore to the previous employer and thus is not a matter for this Decision.

7. Decision:

7.1 The respondent shall pay €1,330 to the complainant in respect of the complaint subject to this adjudication and made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations.

Dated: 30/3/2016