ADJUDICATION OFFICER DECISION
CORRECTING ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT,1997 AND/OR SECTION 41(16) OF THE
WORKPLACE RELATIONS ACT, 2015
The order corrects the original decision issued on 13th March 2017 and should be read in conjunction with that decision
Adjudication Decision Reference: ADJ-00004635
Complaints for Resolution:
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-00006730-001 | 22/07/2016 |
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-00006739-001 | 22/07/2016 |
Date of Adjudication Hearing: 22/11/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, following 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.
Complainant’s Submission and Presentation:
CA-00006730-001 The complainant worked for the respondent for 17 years. On 5th May 2016, she received her last pay and P45 from the respondent following the closure of the business. The shop was subsequently taken over by a new owner. It is submitted that the complainant’s employment should have transferred to the new owner. It is argued that the transferor in this case did not transfer the rights and obligations to the transferee. It is further argued that the transferor (the respondent in this case) failed to provide information and consultation on the transfer of the business. It is submitted that the respondent is in breach of Regulation 4 and Regulation 8. |
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CA-00006739-001
The complainant worked for the respondent for 16 years. On 5th May 2016, she received her last pay and P45 from the respondent following the closure of the business. The shop was subsequently taken over by a new owner. It is submitted that the complainant’s employment should have transferred to the new owner. It is argued that the transferor in this case did not transfer the rights and obligations to the transferee. It is further argued that the transferor (the respondent in this case) failed to provide information and consultation on the transfer of the business.
It is submitted that the respondent is in breach of Regulation 4 and Regulation 8.
Respondent’s Submission and Presentation:
The respondent did not attend the hearing .
Decision:
CA-00006730-001
Regulation 3 provides:
“3.- (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another 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 grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity”
In this case, the respondent ceased to operate as a retailer on 5th May 2016 and the premises was sold by the receiver as an empty building. The receivership sale did not include business goodwill, fixtures or fittings. The business was not transferred and did not retain its identity. In Case C-29/91 Dr Sophie Redmond Stichting [1992] E.C.R. 1-3189, the Court of Justice ruled that the decisive criterion characterising the concept of “transfer” was whether the effect of the transaction was to put the “transferee” in possession of a going concern, or whether the business retained its identity.
In this instant case, the business was not sold as a going concern, and there was no transfer of an “economic entity” which retained its identity.
In this case, I find that the Regulations do not apply.
CA-00006739-001
Regulation 3 provides:
“3.- (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another 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 grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity”
In this case, the respondent ceased to operate as a retailer on 5th May 2016 and the premises was sold by the receiver as an empty building. The receivership sale did not include business goodwill, fixtures or fittings. The business was not transferred and did not retain its identity. In Case C-29/91 Dr Sophie Redmond Stichting [1992] E.C.R. 1-3189, the Court of Justice ruled that the decisive criterion was whether the effect of the transaction was to put the “transferee” in possession of a going concern, or whether the business retained its identity.
In this instant case, the business was not sold as a going concern, and there was no transfer of an “economic entity” which retained its identity.
In this case, I find that the Regulations do not apply.
Dated: 13th March 2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham