ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006073
Complaint(s):
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-00008238-001 | 17/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00008238-002 | 17/11/2016 |
Date of Adjudication Hearing: 20/03/2017
Workplace Relations Commission Adjudication Officer: John Tierney
Location of Hearing: Room G.04 Lansdowne House
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 - 2012, and/or Part VII of the Pensions Acts 1990 - 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 25 of the Equal Status Act, 2000, and/or Section 13 of the Industrial Relations Acts 1969] 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).
Background:
A preliminary point was raised by the Hearing in regard to time limits under the Minimum Notice & Terms of Employment Act. The Hearing was advised that the Claimant was unaware of his entitlements under employment law.He is also claiming redundancy payment. |
Summary of Respondent’s Case:
The Respondent stated that the Claimant was employed by the previous owner of the store until 31 October 2014 at which time he was let go due financial difficulties. The current Respondent was also an employee of the previous owner and he was also let go along with the other employees. In fact the previous owner closed all the stores. A week later the Respondent got permission from the landlord of the premises to reopen the store. He also dealt with suppliers who the previous owner had left debts with and they had frozen the account. The Respondent approached the Claimant asking if he would start in the store for a period of time to see if the business was viable. The Respondent at all times kept the staff appraised of how the business was going. By 8 May the business was not viable and it closed. The Claimant was paid his full weeks’ pay and later once funds became available another three weeks’ pay as a good will gesture. |
Summary of Complainant’s Case:
The Claimant commenced employment on 1 December 2011. There were two main people involved in the business; the previous owner and the Respondent. The Claimant was not provided with any information as to the employing business identity or how the two people were financially or legally connected. It appears that the previous owner was the sole or main owner. The Claimant had moved among the various outlets until 2013 when he was in the same store as the Respondent. In November the Respondent took over this store, however precise details of ownership were not given to the Claimant. Legal arguments were made in support of the Claimant contention that a Transfer of Undertakings had taken place and therefore was covered by the EC Regulation. The Claimant is entitled to a redundancy payment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.]
I have considered the submissions made by the parties. There is a total lack of any documentary evidence in this case. However, what is clear is that the previous owner ignored from their legal responsibilities to the employees. Also, neither the current Respondent or the Claimant did not pursue them for their entitlements. In considering the evidence presented to the Hearing by the parties I do not accept that a transfer of undertaking took place within the meaning of the Regulation. Therefore I do not find the Respondent liable for any redundancy payment. Under CA-8238-001 I do not find the claim well founded and it fails. Under CA-8238-002 I find this claim to be out of time and do not accept the reason advance as reasonable cause. |
Dated: 16th June 2017
Workplace Relations Commission Adjudication Officer: John Tierney
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