ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009300
Parties:
| Complainant | Respondent |
Anonymised Parties | A Merchandiser | Marketing/Merchandising Company |
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-00012201-001 | 29/06/2017 |
Date of Adjudication Hearing: 20/10/2017
Workplace Relations Commission Adjudication Officer: Marian Duffy
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 and 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 31 March 2008 until her employment terminated on 2 December 2016. The complainant is seeking a redundancy lump sum. There respondent denies that she is entitled to redundancy. |
Summary of Complainant’s Case:
The complainant stated that she was employed as a merchandiser by the respondent. She worked in a retail store. Over the last number of years her hours had been reduced to 8 hours per week due to changes within the retail sector.
On the 30th of November 2016 she said that she received a phone call from the respondent informing her that they would no longer have work for her as another merchandising company is taking over the contract. On 1 December 2016 she was asked by her team leader to hand back her tablets and she was told that she would get her P 45 and on 2 December 2016 her employment with the respondent ceased. She received a letter from the respondent stating that they wouldn’t ever to find her social alternative hours in the coming weeks.
The complainant said that the following week she received a phone call from the new contractor who is doing the merchandising in the retail store and she was offered a job. She started work with the new employer on the 13th of the December 2016 I continue to work for them. She said that she received a phone call from the respondents stating that they were in talks with the new employer concerning the takeover of her contract of employment. The complainant said she has spoken to the new employer and they state that they are in under no obligation to take the contract over. She said that she is working with the new employer under a completely new contract of employment. The complainant believes she is entitled to redundancy from the respondent.
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Summary of Respondent’s Case:
The respondent stated that the company’s contract to provide merchandising in a number of retail stores was transferred to a new merchandising company from 5th December 2016 and the retail store where the complainant was merchandising was one of these stores. He said that the complainant’s employment is subject to a transfer under TUPE. The respondent accepted that there was no agreement between the complainant’s new employer and his company under TUPE and the new contractor have refused to accept that TUPE applied. He submitted that the complainant is not entitled to redundancy if they employment transfers to another employer. He said that the new employer was informed that they would be responsible for any redundancy arising on the takeover of the contract but they did not accept that.
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Findings and Conclusions:
Having heard the evidence, I am satisfied that there was no evidence presented by the respondent to support the contention that TUPE applied when the complainant’s employment ended with the respondent. The respondent lost the contract and the complainant’s employment was terminated by the respondent. It is clear that she was approached by the new contractor and she was successful in getting a new contract of employment. In the circumstances, the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts.
I find that, pursuant to the Redundancy Payments Act 1967 – 2014, the complainant is entitled to a redundancy lump sum calculated in accordance with the following criteria: Date of commencement of employment: 31st March 2008 Date of notice of termination of employment: 30th of November 2016 Date employment ended: 2nd December 2016 Weekly Gross Pay: €78.76 |
Decision:
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.
Date of commencement of employment: 31st March 2008 Date of notice of termination of employment: 30th of November 2016 Date employment ended: 2nd December 2016 Weekly Gross Pay: €78.76
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Dated: 23/11/17
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
Redundancy, transfer under TUPE |