ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003316

Complaint(s)/Dispute(s) 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-00004879-001	26/05/2016

Date of Adjudication Hearing: 21/09/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent No 1 in December 2013 claimed my redundancy which they received. In January 2014 Respondent No 1 commenced employment for all employees in their sister company Respondent No 2. I continued working with no redundancy payment. On the 16/10/15 I was given notice that there was no work available for me. They gave me a letter so I could go to the local social welfare office. On 20/11/15 I received my P45. In December 2015 the company gave me €1,000 off my redundancy payment. On 29/03/16 I registered post an RP77 form. On 21/04/16 I registered post RP50 form. I have had no correspondence or contact since sending these. I am looking for my redundancy payment.

Respondent’s Submission and Presentation:

The Respondent witnesses were not the main responsible Managers of the main / first Respondent Company in the period December 2013. It is their belief that a Redundancy Payment may have been claimed, (by other - the then Managerial parties in December 2013) on bthealf of the Complainant. It was unclear to them if the Complainant ever received any Redundancy he may have been due.

They are currently struggling to keep the Company alive and apologise for the confusions.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Issues for Decision:

Is the Complainant entitled to a Redundancy Payment as claimed?

Does continuity of Service applied between Respondent No 1 and Respondent No 2. ?

Legislation involved and requirements of legislation:

Redundancy Payments Act, 1967

Decision:

Having heard the oral evidence and some limited written evidence I am satisfied that the Complainant is due a Redundancy payment from the date of his first employment ( stated to be 15/03/1990) with Respondent No 1 to the ending of his employment with Respondent No 2 on the 20/11/2015.

It has to be noted that Respondent No 2 was not formally part of the proceedings at the hearing but all parties present were in clear agreement that , for business and commercial reasons , the employment of the Complainant had transferred to the “sister company” Respondent No 2 in January 2014. Accordingly there is continuity of service - in effect a TUPE transfer took place.

Respondent No 2 was not a formally notified party to these proceedings. However the relationship as a “Sister Company” and the apparent exact replication of the ownership structures and Managerial staff /employees (from the oral evidence given by the Respondent Managers) to Respondent No1 I was of the opinion that they (Respondent No 2) had to be covered by this Adjudication.

The Redundancy claim is well founded and I direct that a Redundancy payment based on service from 15/03/1990 to 20/11/2015 be paid to the Complainant. As Respondent No 2 was the Complainant’s last employer the liability for the Redundancy falls to them.

Dated: 20^th January 2017