ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004781

Complaint for Resolution:

Date of Adjudication Hearing: 29th November 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Acts 1967, following the referral of the complaint to me by the Director General, 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 was employed by the Respondent from 6^th December 2006 to 28^th July 2016 and her weekly rate of pay was €398.50c.   The Complainant was submitting that she was not paid her statutory redundancy payment in accordance with her rights and entitlements under the Redundancy Payments Acts when her employment was terminated by the Respondent on the closure of the business where she was employed.

Summary of Complainant’s Case:  

The Complainant said that she commenced employment with the original named Dentist in the local Area on 6^th December 2006 as a Dental Nurse.   She said that this Dentist, who is now deceased, sold and transferred the business/practice to the Respondent, who took it over and ran it as going concern without any gap or break from 16^th February 2014 and continued to employ her as a Dental Nurse until the Respondent closed down the business on 28^th July 2016, without notice.     The Complainant said that what occurred in February 2016 was clearly a transfer of undertakings as defined by S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The Complainant said that however the Respondent refused to pay her any redundancy payment and disputed the Complainant’s entitlement to a redundancy payment on the grounds that a transfer of undertakings did not take place in 2014 when she took over the Dental Practice (while I have decided below that there was in fact a transfer of undertakings, I note that even were that not the case there would have been an entitlement to redundancy payment in respect of the 2 years and 5 months from the date of the transfer 16^th February 2014 to the date of the termination of the employment 28^th July 2016).

The Complainant confirmed that she had never received a redundancy payment from either employer, the Transferor or Transferee.   She further confirmed that there had been no breach in her continuous employment from 6^th December 2006 to 28^th July 2016.

Based on the foregoing the Complainant sought a finding and decision that she was entitled to statutory redundancy payments for her full 9.64 years continuous service from 6^th December 2006 to 28^th July 2016.

Summary of Respondent’s Position:

The Respondent was not present or represented and they sent no submissions.

Findings and Decision:

Section 80 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.

Section 39 of the Redundancy Payments 1967, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the same Section of that Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

The Respondent was not present or represented at the Hearing and they sent no submissions, accordingly I only have the evidence and submissions of the Respondent to rely upon in this matter.

Based on the uncontested evidence of the Complainant I find and decide:

1. I find and decide that there was transfer of undertakings in February 2014, in which the Respondent as transferee became the Employer of the Complainant and in which the Complainant’s rights, including her continuity of employment was protected.

    

2. I find and decide that the Complainant was made redundant by the Respondent on 28^th July 2016 when the business closed down with the loss of all job.

    

3. I find and declare that the Complaint was employed by the Respondent from 6^th December 2006 to 28^th July 2016, without any break in service and that her normal weekly rate of pay at the time of the termination of her employment by reason of redundancy was €398.00c per week and that she is entitled to statutory redundancy payments based on that level of service and weekly rate of pay.

I declare that the complaint is well founded and it is upheld in full.

Dated:   22^nd March 2017