Act

Complaint/Dispute Reference No.

Date of Receipt

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-00000008-001

01/10/2015

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-00000008-002

01/10/2015

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00000008-003

01/10/2015

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00000008-004

01/10/2015

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00000008-005

01/10/2015

Complaint    seeking adjudication by the Workplace Relations Commission under Section 39    of the Redundancy Payments Act, 1967

CA-00000008-006

01/10/2015

The   claim under Section 77 of the Employment Equality Act 1998 was   withdrawn.

The   complainant worked for a business owner who operated as a cafe and who sold   the lease to the respondent who operated as an Italian cafe. The respondent was unrepresented and was   happy to proceed unrepresented. A   preliminary issue arose as the respondent disputed that the Protection of   Employees on Transfer of Undertakings (hereinafter referred to as TUPE)   Regulations applied. The respondent   also disputed: that the complainant was dismissed, that the complainant was   dismissed owing to the transfer, that her terms and conditions were reduced   owing to the transfer, that a redundancy situation existed or that the   complainant had entitlement to minimum notice

The   complainant alleged that she commenced employment with the previous owner on   9 April 2013 working in her café from approximately 0830-1730 five days a   week. She advised that around 8^th   March 2015 she was told that somebody else was going to be involved in the   business as a ‘partnership’ and that the previous owner would be still   around. It transpired that the   business had been completely taken over by the respondent who came on site   and talked to her about menus on approximately 12^th March   2015.   The complainant was issued with   a P45 by the other owner dated 27 March 2015 as she was told the respondent’s   accountant had said this should happen.   She was told the new café would be closed for about 5 days while   renovations were carried out when in fact the renovations took approximately   19 days. She called in a few times to   see when it would be open. She started   work with the respondent on approximately 1^st April 2015 earning   €9 per hour compared to €8.65 per hour earned previously, working   approximately the same hours and getting the place ready after the   renovations. She said it appeared to   be accepted that she would work with the new owner and that she was not   interviewed for the job nor was there any discussion around pay. The owners of the original café did not   continue working with the respondent. She   never received a contract and there was no mention of probation. She said the menu was similar with   sandwiches, pizza and pasta and the type of customers was similar to   previously. While the place had been   repainted, furniture was same, coffee machine was same with a new pizza oven   and new fridge and while she had received a P45 from the previous owner this   did not prove anything and cited ADJ00001322 to support this.

Four   weeks after the complainant took over the business she was advised that owing   to business not being good there was only 3 hours work per day available for   her. She took this to mean her job was   gone and finished up work on 1^st May. She maintained that because she was only   offered 3 hours per day she had no choice but to resign. Case law of Spijkers v   Gebroeders Benedik Abbatoir CV [1986]CMLR 1119   was cited with regards to “Spijkers Criteria” when it comes to   deciding whether there has been a transfer of an undertaking namely:

  
1. was the undertaking a stable undertaking with        an ongoing life of its own?

2.   has the entity retained its identity?
3.   have some or all of the staff been   taken over by the new employer?
4.   has the customer base transferred?
5.   are the activities post transfer   similar to those carried on before the transfer?
6.   whether there was an interruption   of the activity
7.   has there been a transfer of   assets?

It was maintained that the instant case   satisfied the above criteria and that as such the complainant had established   her entitlement to be covered by TUPE regulation.

The Respondent denied that TUPE Regulations would apply   in this case. He stated that the   previous sandwich type café was different then the Italian type café that was   opened up by him. It was stated that   the previous owner had committed fraud by not disclosing that other employees   might have to be taken on and that the respondent hired the complainant   because she had previous experience.   His understanding was that it was a trial arrangement and that he had   made this clear to the complainant. He   stated that he had to shut the business down for a period of time as business   was not going well and that he and his wife had a personal bereavement and   that the complainant should have shown more consideration to this.   He stated it was a very difficult time for   him and that he had considered self-harming.   He stated that it was upon the advice of his accountant that he shut   down and reduced the complainant’s hours as he had no need for the complainant   to work as many hours which had previously been allocated to her and that he   only needed her 3 hours per day during the busy time.

He could not understand why the complainant did not   appreciate how things were going and why she would not help him out by   working these hours but stated that it was possible that he would never have   been able to increase her hours again owing to business not being busy enough   albeit became busier in the   summer. He also let go the chef and   managed thereafter with his wife and contract workers for the busy 3 hours   each day.

In the first instance it is required of me to determine whether or not   the TUPE Regulations can be applied.   The law in this area is largely governed by the relevant provisions of   Directive 77/187/EEC and Statutory   Instrument Number 131/2003 –European Communities (Protection of Employees on   Transfer of Undertaking) Regulations 2003 together with what has been   regarded by the EAT as “diverse, varied unwieldly and at times contradictory   case law” (TU31/2014, TU32/2014, TU33/2014, TU34/2014,   TU35/2014). However,   despite this or because of this, cases are ultimately determined by one   overriding principle, namely that each case is more or less decided on its   own unique facts. This case is no exception. What is clear from even the landmark Suzen case [1997] IRLR 255 is that   there may be a transfer of an undertaking although there has been no transfer   of assets and that there may too be a transfer where there is no contractual   link between the transferor and transferee.  

1. ECM V Cox 1998 IRLR 255 highlights, “It can be said with confidence that   neither the presence nor the absence of any one factor will demonstrate that   a transfer of undertaking has or has not occurred. It is a question of   looking at the facts and keeping an eye on the purpose and protection given   by the Directive”.

The pertinent relevant sections in S.I. 131 are   as follows:

Regulation 3/

 “(1) These Regulations shall apply to any transfer of undertaking,   business, or part of an undertaking   or business from one employer as a result of a legal transfer   (including the assignment or forfeiture of a lease) or merger.

 (2) Subject to this Regulation, in these Regulations –   “transfer” means the transfer of an economic entity which retains its   identity;

“economic entity” means an organised group of   resources which has the objective of pursuing an economic activity whether or   not that activity is for a profit or whether it is central or ancillary to   another economic or administrative entity.”

 (3) These Regulations shall apply to public and private   undertakings engaged in economic activities whether or not they are operating   for gain.”

“Regulation 4/ 

(1)  The transferor’s rights and obligations arising from a contract of employment existing on the   date of a transfer shall, by reason of such transfer, be transferred   to the transferee.

(2)Following a transfer, the transferee shall continue to observe the   terms and conditions agreed under in any collective agreement on the same   terms applicable to the transferor that agreement until the date of   termination or expiry of the collective agreement or the entry into force or   application of another collective agreement.”   

It is appropriate to consider the Spijkers Case- 1986 ECR 1199 and as   detailed in that decision the necessity “to consider all the facts   characterising the transaction question, including the type of undertaking or   business, whether or not the business’s tangible assets, such as the   buildings and moveable property, are transferred, the value of its intangible   assets at the time of the transfer, whether or not the majority of its   employees are taken over by the new employer, whether or not its customers   are transferred and the degree of similarity between the activities carried   on before and after the transfer and the period, if any, for which those   activities were suspended”. Hemat v Medical Council 2006 IEHC 187   also reinforces how the issue must be determined on a case by case basis.

It would appear in this instant case that the undertaking was a stable undertaking with an ongoing life of its own   with the tangible assets namely the premises and some   contents as well as customers transferred.   There is a very close similarity in the activities before and after   the transfer (I note that the respondent stated his was an Italian restaurant   and that the previous business made sandwiches but having reviewed a number   of factors including the menus and that the word ‘café’ appears in the name   of his business; I would regard them as very similar eatery establishments).   While activities were suspended for a period of time this was purely   to facilitate renovations and as per the evidence of the respondent these   renovations took longer than expected.   Furthermore, by the fact the respondent advised that he is pursing a   claim against the previous owner for fraud, there was no interview process,   nor contract issued to the complainant; could indicate that the Respondent   knew or ought to have known that it was intended that TUPE Regulations would   apply to this situation. While she was   the only employee who appeared to ‘transfer’ over, the previous business was   a very small entity and the complainant advised how she passed each day to   see how the renovations were progressing which suggests that her evidence was   credible that she expected to start work with the new owner once the   renovations were complete and that the respondent had engaged with her   previously in the workplace when he was in the process of taking over the   business. While she had received a P45   from the previous owner, I would support the view of AO in ADJ-00001322 that   this does not indicate that her pre-service was severed and that in itself a   P45 “does not prove anything”.

In the case of Moses Walsh and Patrick Cotter v Denford Taverns Ltd. and John Bowler   – Case UD 436/97, 437/97, 1998 ELR 315, whereby a public house was sold to the Respondent,   who was under the impression that previous owner had “taken care” of the   employees, the Tribunal determined that there had been a transfer of   undertakings and the fact that the business was carried out in a more modern   manner, or refurbished the premises, did not relieve him of his obligations   under the European Communities   (Safeguarding of Employees Rights on Transfer of Under taking) Regulations   1980.

While all these circumstances- “are merely single factors in the overall   assessment which must be made and cannot, therefore, be carried out in   isolation” (Spijkers Case- 1986 ECR 1199) and taking into consideration a number of   factors including: the above reference to Spijkers as quoted, Sections 3/ and 4/ of S.I. 131, and   the relevant rules of statutory interpretation, (given that the overriding   purpose of S.I. 131, is to protect employees), the diverse and additional   case law, the evidence adduced, the unwieldy nature of the law; I find that   the TUPE Regulations can be applied to the unique and specific circumstances   of the present case.

I find that on the preliminary issue that the TUPE   Regulations can be applied to the unique and specific circumstances of the   present case.

The complainant maintains, without prejudice to her   other claims, that her terms and conditions had been changed owing to   the transfer. She outlined that   although her hourly rate of pay had increased from €8.65 to €9.00 that the   respondent reduced her hours of work from approximately 39 hours to 15 hours   per week on the basis of the TUPE. She   maintained that it would not be possible to sustain working these hours. She   advised that she was told on 1^st May by the respondent that he did   not know what was happening with the job as it was too quiet. She asked if she could work 8 hours a day   for 3 days instead of 3 hours for 5 days so that she could claim social   welfare. Around 11^th May   2016 she arrived at the coffee shop to get her P45. She saw other people working there and   asked why they were working in her job and was told it was because he needed   somebody to cover her hours as she had left.

The respondent denied that there was a   TUPE and denied that he had reduced her terms and conditions of employment   owing to the transfer. He stated he   had in fact increased her hourly rate from €8.65 to €9.00 but that he had no   option but to reduce her hours of work because it was not busy enough in the   café to sustain her previous hours and that he acted upon the advice of his   accountant. He stated that this   reduction of hours was applied across the board and that he had to let his   chef go and himself and his wife, once she was well enough to work with   him, maintained the business with the   help of agency workers for the 3 busy hours of the day. He had offered these hours to the   complainant but she refused them.

Having determined that TUPE regulations   apply to the complainant I must look at whether the complainant’s terms and   conditions were reduced on the grounds of the transfer of the   business/undertaking.  

Section   4. of the regulation states that “The   transferor's rights and obligations arising from a contract of employment   existing on the date of a transfer shall, by reason of such transfer, be   transferred to the transferee.”

While there is no specific rule on the   period of time when one can safely assume that change is unrelated to the   transfer of the business and therefore valid, it is clear that it requires   analysis of the circumstances arising in each individual case. The UK EAT considered how to determine   whether a variation is connected to a transfer in Smith v Brooklands College (EAT/0128/11) and they held that the   relevant question was what was in the employer’s mind in effecting the   change.

In this instant case, it was alleged by   the complainant that the respondent failed to observe the terms and conditions   transferred from her previous employer.   It was accepted that the complainant’s rate of pay in fact increased   from €8.65 to €9.00 after the transfer; however, her hours of work were   reduced to 3 hours per day a month later.   The respondent advised that his decision was owing to a number of   factors including a downturn in business and that upon the advice of his   accountant, it was not possible to sustain the complainants hours of   work. He advised that he intended it   as a temporary arrangement but it could have developed into a longer term   arrangement including the possibility of letting her go completely and he had   to let others go including the chef.   He also provided evidence that business had improved in the summer and   that he has had to utilise an agency for those additional 3 hours per day   when it was busy – hours which the complainant had rejected.

Having, therefore, taking into consideration all the evidence including   that for the first month or so the complainant continued to enjoy the same   hours she had previously and was on a higher rate of rate, and that on the   advice of the accountant owing to a downturn in the business, hours were   reduced which resulted in other employees leaving, and that the respondent repeatedly denied during the hearing that TUPE regulations   applied to the complainant’s case and, and that the complainant was not   willing to work the short-term working for any period of time, I do not   believe the ‘transfer’ was a reason for the reduction in the complainant’s   hours. If   there was a generic prohibition on changing terms and conditions of   employment it could have serious ramifications to industry and indeed this is   recognised in Regulation 5(2) which details that   “nothing in this Regulation shall be   construed as prohibiting dismissals for economic, technical or organisational   reasons which entail changes in the workforce.”

It is my view that the hours were reduced owing to economic reasons as   the business did not have enough business to support the hours that it could offer   to the complainant, unrelated to the transfer. The complaint fails.

Section 41(4)   of the Workplace Relations Act 2015 requires that I make a decision in   relation to the complaint in accordance with the relevant redress provisions   under Schedule 6 of that Act.

I find that this complaint under the Regulation 10 of the European   Communities (Protection of Employees on Transfer of Undertakings) Regulations   2003 (S.I. No. 131 of 2003), is not well   founded and the claim fails.

The complainant maintains, without   prejudice to her other claims, that she was unfairly   dismissed by being constructively dismissed on the grounds of the transfer of   the business. She maintains that the   respondent reduced her hours of work from approximately 39 hours to 15 hours   per week on the basis of the TUPE and that she had no option but to resign her position. She maintained that it was not possible to   sustain working these hours. She advised that she was told on 1^st   May by the respondent that he did not know what was happening with the job as   it was too quiet. She asked if she   could work 8 hours a day for 3 days instead of 3 hours for 5 days so that she   could claim social welfare. Around 11^th   May 2016 she arrived at the coffee shop to get her P45. She saw other people working there and   asked why they were working in her job and was told it was because he needed   somebody to cover her hours as she had left.   She felt she had no other alternative but to leave as she claimed she   was unfairly dismissed by being constructively dismissed on the grounds of   the transfer.

The respondent denied that the TUPE Regulations   applied and denied that he had terminated her employment because of   TUPE. He stated that she left herself   and that he had in fact increased her hourly rate from €8.65 to €9.00 but   that he had no option but to reduce her hours of work because it was not busy   enough in the café to sustain her previous hours and that he acted upon the   advice of his accountant. He stated   that this reduction of hours was applied across the board and that he had to   let his chef go and himself and his wife, once she was well enough to work   with him, maintained the business with   the help of agency workers for the 3 busy hours of the day. He had offered these hours to the   complainant but she refused them.

Having determined   that TUPE regulations apply to the complainant, the relevant regulations   pursuant to the complainant’s claim of unfair dismissal are :

Regulation 5(1) of the European Communities   (Transfer of Undertakings) Regulations 2003 which provides that the transfer   of a business does not in itself constitute grounds for dismissal.

Regulation 5(3)      If a contract of   employment is terminated because the transfer involves a substantial change   in working conditions to the detriment of the employee concerned, the   employer concerned shall be regarded as having been responsible for the   termination of the contract of employment.

Furthermore,   Regulation 5(2) details that for reasons of economic, technical or   organisation reasons “nothing in this   Regulation shall be construed as prohibiting dismissals …which entail changes   in the workforce.”

The burden of proof, which is   a very high one, lies on the claimant and it in necessary that she show that   her resignation was not voluntary AND was in connection with or arising from   the transfer. To determine such   requires analysis of all of the circumstances in each individual case and as   determined in Smith v Brooklands   College (EAT/0128/11) it is important to take into consideration what was   in the employer’s mind when they effected change that resulted in the   complainant resigning.   Furthermore, as is set out in   Western Excavating ECC Limited –v- Sharp 1978 ICR221, (an Unfair   Dismissal case) the legal test to be applied is “an and / or test”.  Firstly, I am required to look at the   contract of employment and establish whether or not there has been a   significant breach going to the root of the contract.

“if the   employer is guilty of conduct which is a significant breach going to the root   of the contract of employment, or which shows that the employer no longer   intends to be bound by one or more of the essential terms of the contract,   then the employee is entitled to treat himself as discharged from any further   performance”

If I am not satisfied that the   “contract” test has been proven then I am obliged to consider the   “reasonableness” test.

“The employer conducts   himself or his affairs so unreasonably that the employee cannot fairly be   expected to put up with it any longer, then the employee is justified in   leaving”

When assessing the   reasonableness test all of the circumstances of the case must be considered   to establish whether or not it was reasonable for the claimant to terminate   her contract of employment.

In this instant case, it was alleged by   the complainant that the respondent reduced her hours so significantly owing   to the transfer that she was left with no alternative but to resign her   position. It was accepted that the   complainant’s rate of pay in fact increased from €8.65 to €9.00 after the   transfer; however, her hours of work were reduced to 3 hours per day a month   later. The respondent advised that his   decision was owing to a number of factors including a downturn in business   and that upon the advice of his accountant, it was not possible to sustain   the complainants hours of work. He   advised that he intended it as a temporary arrangement but it could have   developed into a longer term arrangement including the possibility of letting   her go completely and he had to let others go including the chef. He also provided evidence that business had   improved in the summer and that he has had to utilise an agency for those   additional 3 hours per day when it was busy – hours which the complainant had   rejected.

It may have been the case that after a   period of time on short-time working, a situation might have developed whereby there was   a dismissal owing to “economic, …reasons which entail changes in   the workforce”. This has been held by   the Tribunal in Smart Bros   Ltd and Mexico 79 v Morris and Others, as grounds that justify redundancy,   whereby redundancy which relates to the role and not the employee however the complainant did not   stay around to see.

Therefore, having taking into consideration all the evidence including   that for the first month or so the complainant continued to enjoy the same   hours she had previously and was on a higher rate of rate, and that on the   advice of the accountant owing to a downturn in the business, hours were   reduced which resulted in other employees leaving, and that the respondent repeatedly denied during the hearing that   TUPE regulations applied to the complainant’s case and, that the complainant   was not willing to work the short-term hours for any period of time, I do not   believe that the changes in her terms and conditions was related to the transfer nor that she was left with no alternative owing   to the transfer but to resign her position.   If there was a generic prohibition on changing terms and   conditions of employment it could have serious ramifications to industry and   indeed this is recognised in Regulation 5(2) which details that   “nothing in this Regulation shall be   construed as prohibiting dismissals for economic, technical or organisational   reasons which entail changes in the workforce.” I find that the resignation of the complainant was hasty, premature and   unreasonable in the circumstances and was unrelated to the transfer and does   not meet the burden of proof required under the ‘contract’ test or the   ‘reasonableness’ test. Accordingly I   find that she the complaint is not well founded and does not succeed.

Section 41(4)   of the Workplace Relations Act 2015 requires that I make a decision in   relation to the complaint in accordance with the relevant redress provisions   under Schedule 6 of that Act.

I find that this complaint under the Regulation 10 of the European   Communities (Protection of Employees on Transfer of Undertakings) Regulations   2003 (S.I. No. 131 of 2003), is not well   founded and the claim fails.

The complainant maintains, without   prejudice to her other claims, that she was unfairly   dismissed by being constructively dismissed as the respondent reduced her   hours of work from approximately 39 hours to 15 hours per week and that she had no option but to   resign her position. She   maintained that it was not possible to sustain working these hours. She   advised that she was told on 1^st May by the respondent that he did   not know what was happening with the job as it was too quiet. She asked if she could work 8 hours a day   for 3 days instead of 3 hours for 5 days so that she could claim social   welfare and requested her P45. Around   11^th May 2016 she arrived at the coffee shop to collect her P45. She saw other people working there and   asked why they were working in her job and was told it was because he needed   somebody to cover her hours as she had left.   She felt she had no other alternative but to leave as she claimed she   was unfairly dismissed by being constructively dismissed.

The respondent   denied that the TUPE Regulations applied and advised that she did not,   therefore, have the pre-requisite 12 months service to be covered by the Act. He stated that she left herself and that he   had in fact increased her hourly rate from €8.65 to €9.00 but that he had no   option but to reduce her hours of work because it was not busy enough in the   café to sustain her previous hours and that he acted upon the advice of his   accountant. He stated that this   reduction of hours was applied across the board and that he had to let his   chef go and himself and his wife, once she was well enough to work with   him, maintained the business with the   help of agency workers for the 3 busy hours of the day. He had offered these hours to the   complainant but she refused them.

Having   determined that TUPE regulations apply to the complainant and that she has   the relevant service required under the Unfair Dismissals Acts, the relevant   section provides under s. 1. - [(1)] (c) (b) - that dismissal, in relation to an employee, means –

“The termination by the employee of his/her   contract of employment with his employer, whether prior notice of the   termination was or was not given to the employer, in circumstances in which,   because of the conduct of the employer, the employee was or would have been   entitled, or it was or would have been reasonable for the employee, to   terminate the contract of employment without giving prior notice of the   termination to the employer”

The burden of proof, which is   a very high one, lies on the claimant and it in necessary that she show that   her resignation was not voluntary. As   is set out in Western Excavating ECC   Limited –v- Sharp 1978 ICR221, the legal test to be applied is “an and /   or test”.   Firstly, I am required to   look at the contract of employment and establish whether or not there has   been a significant breach going to the root of the contract.

“if the   employer is guilty of conduct which is a significant breach going to the root   of the contract of employment, or which shows that the employer no longer   intends to be bound by one or more of the essential terms of the contract,   then the employee is entitled to treat himself as discharged from any further   performance”

If I am not satisfied that the   “contract” test has been proven then I am obliged to consider the   “reasonableness” test.

“The employer conducts   himself or his affairs so unreasonably that the employee cannot fairly be   expected to put up with it any longer, then the employee is justified in   leaving”

When assessing the   reasonableness test all of the circumstances of the case must be considered   to establish whether or not it was reasonable for the claimant to terminate   her contract of employment.

In this instant case, it was alleged by the complainant that the   respondent reduced her hours so significantly that she was left with no   alternative but to resign her position.   It was accepted that the complainant’s rate of pay in fact increased   from €8.65 to €9.00 after the transfer; however, her hours of work were   reduced to 3 hours per day a month later.   The respondent advised that his decision was owing to a number of   factors including a downturn in business and that upon the advice of his   accountant, it was not possible to sustain the complainants hours of   work. He advised that he intended it   as a temporary arrangement but it could have developed into a longer term   arrangement including the possibility of letting her go completely and he had   to let others go including the chef.   He also provided evidence that business had improved in the summer and   that he has had to utilise an agency for those additional 3 hours per day   when it was busy – hours which the complainant had rejected.

It may have been the case that after a period of time on   short-time working, a situation might have developed whereby there was a   dismissal owing to redundancy as provided for under the Section 3(4) of the legislation:

“Without prejudice to the generality of   subsection (1) of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, not to be an unfair dismissal, if it results   wholly or mainly from one or more of the following:

(a) the   capability, competence or qualifications of the employee for performing work   of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the   redundancy of the employee,

however, the complainant did not stay around long enough to see.

Having taking into consideration all the evidence including that for   the first month or so the complainant continued to enjoy the same hours she   had previously and was on a higher rate of rate, and that on the advice of   the accountant owing to a downturn in the business, hours were reduced which   resulted in other employees leaving, and, that the complainant was not   willing to work the short-term hours for any period of time, I find that the resignation of the complainant was hasty, premature and   unreasonable in the circumstances. The complaint has not met the burden of proof required under the   ‘contract’ test or the ‘reasonableness’ test.   Accordingly I find that the complaint is not well founded and does not   succeed.

Section 8(1B)   of the Unfair Dismissals Act, 1977 requires that I make a decision in   relation to the unfair dismissal claim consisting of a grant of redress in   accordance with section 7 of the 1977 Act.

For the reasons outlined above, I   determine that the complaint of unfair dismissal is not well founded and does   not succeed.

This   claim was withdrawn on the day.

The complainant maintains, without   prejudice to her other claims, that she is entitled to a minimum notice of   two weeks.

The respondent claimed that there   was no transfer of undertakings and that the complainant was not eligible for   notice.

Having concluded that the complaint   terminated her own employment, there can be and is no entitlement to notice   pay as she was not available to work her minimum notice period.  

Accordingly I find and declare that   the complaint relating to minimum notice payment is not well founded and it   fails.

Section 41(4)   of the Workplace Relations Act 2015 requires that I make a decision in   relation to the complaint in accordance with the relevant redress provisions   under Schedule 6 of that Act.

I find that as the complainant resigned her own position the claim under Minimum Notice and Terms of Employment   Acts fails.

The complainant maintains, without   prejudice to her other claims, that by the reduction in her hours, she was   deemed to have been made redundant and that she had the requisite service   required through her employment with the previous owner and the respondent. She maintains that by the respondent   reducing her hours of work from approximately 39 hours to 15 hours per week;   it was not possible for her to reasonably sustain working these hours and   that her role was in effect redundant. She advised that she was told on 1^st   May by the respondent that he did not know what was happening with the job as   it was too quiet. She asked if she   could work 8 hours a day for 3 days instead of 3 hours for 5 days so that she   could claim social welfare and then requested her P45. Around 11^th May 2016 she arrived   at the coffee shop to collect her P45.   She saw other people working there and asked why they were working in   her job and was told it was because the respondent needed somebody to cover the   3 busy hours as she had left. On 27^th   August 2015, through her solicitor, she submitted a Form RP77 but received no   reply.

The respondent denied that the complainant was covered by the   Redundancy Payments Act 1967 as: the   TUPE regulations did not apply, and that she did thus not have the requisite   service and that there was a job there for her when she walked out. He stated that she left herself and   that he had in fact increased her hourly rate from €8.65 to €9.00 but that he   had no option but to reduce her hours of work because it was not busy enough   in the café to sustain her previous hours and that he acted upon the advice   of his accountant. He stated that this   reduction of hours was applied across the board and that he had to let his chef   go and himself and his wife, once she was well enough to work with him, maintained the business with the help of   agency workers for the 3 busy hours of the day. He had offered these short-time hours to   the complainant but she refused them.

As I   have found that the TUPE Regulations can be applied to   the unique and specific circumstances of the present case, and as the   complainant can be deemed to be “employed for the requisite period”, of 104 weeks continuous employment (within the   meaning of Schedule 3), it is left to me   determine whether a redundancy situation existed.

Relevant sections of the Act include: Section   7(1) which provides that:

7. — (1) An employee, if he is dismissed by   his employer by reason of redundancy or is laid off or kept on short-time for   the minimum period, shall, subject to this Act, be entitled to the payment of   moneys which shall be known (and are in this Act referred to) as redundancy   payment provided—

( a) he has been employed for the   requisite period, and

( b) he was an employed contributor in   employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date   of the termination of his employment, or had ceased to be ordinarily employed   in employment which was so insurable in the period of four   years ending on that date.

Furthermore, Section   (2) goes on to state:

“ For the purposes of subsection (1),   an employee who is dismissed shall be taken to be dismissed by reason of   redundancy if for one or more reasons not related to the   employee concerned the dismissal is attributable wholly or mainly to—

( a) the fact that his employer has   ceased, or intends to cease, to carry on the business for the purposes of   which the employee was employed by him, or has ceased or intends to cease, to   carry on that business in the place where the employee was so employed, or

(b) the fact that   the requirements of that business for employees to carry out work of a   particular kind in the place where he was so employed have ceased or   diminished or are expected to cease or diminish, or

(c) the fact that   his employer has decided to carry on the business with fewer or no employees,   whether by requiring the work for which the employee had been employed (or   had been doing before his dismissal) to be done by other employees or   otherwise, or

  Short time is defined in Section 11 of the Redundancy Payments Acts 1967-2007(The   Acts) as follows:     (2) Where —

( a ) for any week an   employee ’ s remuneration is less than one-half of his normal weekly remuneration or   his hours of work are reduced to less than one-half of his normal weekly   hours,

( b ) the reduction in   remuneration or hours of work is caused by a diminution either in the work   provided for the employee by his employer or in other work of a kind which   under his contract the employee is employed to do.

( c ) it is reasonable   in the circumstances for the employer to believe that the diminution in work   will not be permanent and he gives notice to that effect to the employee   prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept   on short-time for that week.

Where an employees has been on short-time working, S 12 the Acts states

2. —(1)An   employee shall not be entitled to redundancy payment by reason of having been   laid off or kept on short-time unless —

( a )   he has been laid off or kept on short-time for four or more consecutive weeks   or, within a period of thirteen weeks, for a series of six or more weeks of   which not more than three were consecutive, and

( b )   after the expiry of the relevant period of lay-off or short-time mentioned in   paragraph ( a ) and not later than four weeks after the cessation of the   lay-off or short-time, he gives to his employer notice (in this Part referred   to as a notice of intention to claim) in writing of his intention to claim   redundancy payment in respect of lay-off or short-time.

(2)   Where, after the expiry of the relevant period of lay-off or short-time   mentioned in subsection (1) ( a   ) and not later than four   weeks after the cessation of the lay-off or short time, an employee to whom   that subsection applies, in lieu of giving to his employer a notice of   intention to claim, terminates his contract of employment either by giving   him the notice thereby required or, if none is so required, by giving him not   less than one week ’ s   notice in writing of intention to terminate the contract, the notice so given   shall, for the purposes of this Part and of Schedule 2, be deemed to be a   notice of intention to claim given in writing to the employer by the employee   on the date on which the notice is actually given.

The respondent confirmed   in evidence that the complainant’s hours had been reduced and that his   immediate requirement was for somebody for 3 hours per day to cover the busy   period. This was also affirmed in an   email from the respondent to the complainant’s representative which details “I   did not have bad intentions with her actually I have found her a brilliant   worker but unfortunately I could not afford a full time employee” and   also “you know I had to import money from abroad to pay your last week’s   wages”. It may have been the case that after a period of time on   short-time working, a situation might have developed whereby there would be a   dismissal owing to redundancy as provided for under the Section 3(4) of the legislation:

“Without prejudice to the generality of   subsection (1) of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, not to be an unfair dismissal, if it results   wholly or mainly from one or more of the following:

(c) the redundancy of the employee,

however, the complainant did not stay around to see. The complainant was advised on 1^st May 2015 that her hours   were being reduced, however, she said that she could not work so few hours   and asked for her P45 which she returned for on 11^th. While the hours of work which the complainant was   offered were reduced, her decision to reject them was hasty and as she has not been laid off or kept on short-time for “four or   more consecutive weeks” and as the situation may have changed and did in fact   improve over the Summer period, she is not entitled to a redundancy payment   and the claim is not well founded and fails.

Section 39 of   the Redundancy Payments Acts 1967 - 2014 requires that I make a decision in   relation to the complaint in accordance with the relevant redress provisions   under that Act. I find that this complaint under the Redundancy   Payments Acts, is well not   founded and the claim fails.

Transfer of undertakings, TUPE, unfair dismissal,   redundancy, minimum notice