ADJ-00006473 Correcting Order

ADJUDICATION OFFICER DECISION

CORRECTING ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997

This Order corrects the original decision issued on the 12^th June 2017 and should be read in conjunction with that decision.

Adjudication Reference: ADJ-00006473

Parties:

	Complainant	Respondent
Parties	A Manager	A Public House

Representatives

None

ESA Consultants

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00008799-001	15th December 2016

Date of Adjudication Hearing: 9th March 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 15^th December 2016, the complainant submitted a complaint to the Workplace Relations Commission pursuant to the Redundancy Payments Acts. The complaint was scheduled for adjudication on the 9^th March 2017. The complainant attended the adjudication and was accompanied by a family member. Joe Bolger, ESA Consultants represented the respondent and one director attended.

In accordance with section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant seeks her entitlement to a redundancy lump sum payment and the respondent denies the claim.

Summary of Complainant’s Case:

The complainant worked for the respondent for a period of seven years, starting in February 2009. Her employment came to an end on the last day of June 2016. The lease of the public house ended and the business closed for a period of two months in advance of prospective buyers seeking to purchase the business. The complainant met with the prospective buyers when they visited the building. The business closed at midnight on the Thursday, 30^th June 2016. The complainant and other staff spent the following weekend emptying out the premises and transferring stock to another public house owned by the respondent which was close by. The complainant went to this other public house to enquire what was going on. She was informed that the landlord of the building of the respondent public house was to take over their contracts of employment. The complainant commented that the last time she had seen the landlord was over a year beforehand. She said that the landlord has never spoken to her about her working in the public house following the closure of the business. She said that the named Group Operations Manager of the respondent asked her to come in to do various tasks in or about the public house. This was not paid and she did things like show the prospective buyers how to use the safe. In the end, the prospective buyers did not proceed with the purchase of the building. The complainant submits that her employment commenced on the 6^th February 2009 and came to an end on the 3^rd July 2016. She worked 40 – 45 hours per week and earning a gross annual salary of €38,000.

In cross-examination, the complainant acknowledged that she had spoken to the prospective purchasers, but denied that she had worked for them. She said that they did not pay her. She acknowledged handing the keys to the prospective purchasers but did so at the request of the management of the respondent. In reply to the question who asked her to clear out stock, she said it had been a named manager in the other public house who had given her this instruction. The business in the public house ceased trading and was closed after this. She had observed that it closed on walking up and down the street on which the public house is located.

In reply to the respondent, the complainant said that the locks had not been changed at the end of June 2016, but she learnt that they were later changed when someone rang her. She denied ordering stock for the prospective purchasers and acknowledged that they had asked her to introduce them to representatives, which she did. She commented that many of her former colleagues in the respondent premises had zero hour contracts and had less than two year’s service. Commenting on the photographs exhibited on social media, she said that they could have been taken at any time.

In the complaint form, the complainant states that her fortnightly gross pay was €1,346.15. She was informed in January 2016 that the building was for sale and that the respondent hoped to purchase it. In June 2016, the complainant and staff were told that the business was to close abruptly at the end of the respondent’s lease and that the business closed on the 30^th June 2016. The complainant asserts that her employment was terminated by the respondent and that she received her P45 on the 14^th July 2016.

Summary of Respondent’s Case:

The respondent denied the claim and submitted that the complainant’s employment had transferred to a new employer following the ending of the respondent’s business. The new owners of the building took over the complainant’s employment and she is not entitled to a redundancy lump sum payment from the respondent. It also submitted that the complainant’s correct salary was €35,000 gross. It had supplied the relevant personal information regarding the complainant and 20 other employees to solicitors for the new owners. The public house remained open after 30^th June 2016, but it did not know who operated the facility.

The respondent outlined that a transfer of undertaking had occurred and that the complainant’s employment had transferred to a transferee. It was not necessary for any particular form to be completed in order to effect a transfer. It submitted that it could not know what had taken place after the transfer and the complainant had a cause of action against the new employer. It had advised employees that the lease of the premises was coming to an end. The landlord of the business had said that he would be taking over the business and the prospective purchasers had been identified. The respondent had sent the landlord’s solicitors details of the employees and this was later sent to solicitors for the prospective buyers. The respondent acknowledged that the premises may have closed for a few days to allow for refurbishment. There had been consultation with staff regarding this process and they were notified of the identity of the prospective buyers. The complainant was an employee of the new company and may have a TUPE claim against it. The respondent outlined that it was now in liquidation.

The director outlined that he had wished for the complainant and all staff to be looked after. The landlord had suggested that he meet with the prospective purchasers, and he did so with the complainant. The contact details of staff were provided to the prospective purchasers. The prospective purchasers took occupation of the premises and they gave a set of keys to the complainant, who had set up new accounts and ordered stock for the new business. This stock had been delivered to the premises on the 30^th June 2016. The complainant then moved the respondent’s remaining stock to the other premises. He referred to exhibited documentation regarding the exchange of information and that this was evidence of the transfer taking place. The director said he was not sure when the premises re-opened and that it may have been re-painted by the new owners. The process of the lease ending had been protracted with a great number of interactions with the agent, the landlord and the prospective purchasers. He had no idea who was running the public house now. The licence had been in the landlord’s name but had transferred into the name of the prospective purchasers on the 30^th June 2016.

In submissions, the respondent states that the complainant commenced her employment in February 2010 and in September 2011, the respondent acquired the lease for the public house which was to expire on the 16^th June 2016. The complainant and the other employees transferred to the respondent on the 16^th September 2011. In September 2013, the complainant was promoted to the role of General Manager and in January 2014, her salary increased to €35,000 per annum. The respondent refers to correspondence of the 26^th January 2016 and issued by the respondent’s solicitors to the landlord’s solicitors to say that the existing employees would transfer to the landlord on the expiry of the lease in June 2016. It is submitted that the complainant and the other employees were informed of this situation and the subsequent extension of the lease to the 30^th June 2016. On the 14^th March 2016, the respondent was advised by solicitors for the landlord that that sale of the premises to the prospective buyers had been agreed and the complainant was subsequently informed that the respondent would not continue trading at the end of the lease. The respondent states that the complainant was provided with a closing business plan on the 21^st April 2016. It is submitted that on the 10^th June 2016, the landlords confirmed to the respondent that a deal had been concluded with the prospective buyers and that the respondent should vacate on the 30^th June 2016. It is submitted that on the 21^st June 2016, the prospective purchasers met with the complainant, where they confirmed that the complainant’s services would be retained and that she commenced working for them from that date on. It is submitted that the transfer occurred at this point in time and the complainant proceeded to work for the prospective buyers, including the setting up of new accounts. Solicitors for the prospective buyers wrote to the respondent on the 22^nd June 2016 to ask for the details of the employees’ contracts and rates of pay. The respondent wrote to the solicitors for the prospective buyers on the 4^th August 2016 to remind them of their TUPE obligations. In closing submissions, the respondent outlines that the complainant’s employment transferred to the prospective buyers pursuant to a transfer of undertaking. The complainant ought to lodge a case against the party who now operates the business.

The respondent includes in its submissions an email sent to the complainant of the 27^th January 2016 regarding the agents viewing the premises, in particular the kitchen and stores. In an email of the 4^th August 2016, the respondent indicates to the landlord that a transfer of undertaking has taken place and that the employees have redress against the landlords pursuant to the TUPE Regulations. On the 13^th March 2017, the respondent submitted photographs of the premises taken at the time and after June 2016; the respondent’s submission is that they depict the public house to be open for business immediately after this period.

Findings and Conclusions:

The complainant asserts that she is entitled to a redundancy lump sum payment in accordance with Redundancy Payments Act. The respondent denies the claim and asserts that her employment transferred to a new employer, who took over the business of the public house.

Section 9 of the Redundancy Payments Acts addresses the situation where an employee is immediately re-engaged by another employer:

“9.— (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if— ( a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or ... (3) (a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if— (i) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment, (ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer, (iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which— (A) sets out the terms and conditions of the employee’s contract of employment with the new employer, (B) specifies that the employee’s period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer, (C) contains particulars of the service mentioned in clause (B), and (D) the employee notifies in writing the new employer that the employee accepts the statement required by this subparagraph. (b) Where in accordance with this subsection an employee is re-engaged by the new employer, the service of that employee with the previous employer shall for the purposes of this Act be deemed to be service with the new employer.”

Having considered the evidence of the parties, I find that the respondent is not entitled to rely on section 9(3) of the Redundancy Payments Acts as, in the first instance, it did not provide the complainant with the statement required by this section. There was also insufficient evidence of any offer of re-engagement from the new employer or the agreement of the complainant.

The respondent asserts that a transfer of undertaking took place and the complainant’s employment transferred to a new business. I am struck by the uncertainty of the situation and the many references to this uncertainty in the correspondence exchanged by the parties. The future of the business was not clear. The respondent had initially sought to buy the premises and there was a prospect of another buyer acquiring the site. The respondent’s lease came to an end and following a short extension, the business closed. While the possibility of the business continuing with the same staff had been mooted, I do not think that the interaction between the respondent and staff, including the complainant, can be described as information and consultation in line with Regulation 8 of the E.C. (Protection of Employees on Transfer of Undertakings) Regulations. I also accept the evidence of the complainant that she did not work for the prospective purchasers or for the landlord; at the respondent’s request, she liaised with the prospective purchasers regarding the operation of the new business. I find that the complainant’s employment came to an end on the 30^th June 2016, the last day the respondent business was in operation. I note that the P45 issued to the complainant states that her gross pay from the 1^st January 2016 to the 30^th June 2016 was €20,192.95 and from that I extrapolate that her annual salary is €40,385.90 and that her gross weekly wage is €776.65.

Taking these findings together, I conclude that the complainant was made redundant by the respondent at the time of the closure of its business. Consequently, the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts on the following criteria:

Date of commencement of employment: 6^th February 2009

Date of end of employment: 30^th June 2016

Weekly gross pay: €776.65 per week

Decision:

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.

CA-00008799-001

I decide that, pursuant to the Redundancy Payment Acts, the complainant is entitled to a redundancy lump sum calculated according to the following criteria: