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-00010320-001

20/03/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00010320-002

20/03/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00010320-003

20/03/2017

1. I   commenced work for Company A as bar tender in a licensed premises which was located   on St. Stephen’s Green, Dublin in   February 2007
2. Company   A was taken over by Company B in February 2011. I signed a contract with Company   B. In this contract was a term stating that “no previous period of employment   with any other company shall be treated as continuous.”
3. Under   my employment with Company B my terms and conditions of employment, were the   same and the location of my work was the same, as it had been with Company A.
4. In   2015 the owner of Company B decided to renovate the licensed premises in St.   Stephen’s Green and asked if I would temporarily change my work location   while the renovations were being completed. I was told that this would be for   a period of 3 months and I accepted this. My new work location was in Dundrum   in Dublin. I started there in September 2015. Other than the change of   location, my terms and conditions of employment remained the same and my pay   slips only changed to reflect the change in work location, nothing else. At   all times I understood that my employment was still with Company B.
5. This   so-called “temporary arrangement” instead of lasting 3 months in fact lasted   18 months.
6. On   6 February 2017 my employer told me that the licensed premises in Dundrum was   closing down and there would be no work for me.
7. I   immediately went to the social welfare offices and they informed me that I   would need to establish if, when I moved location from St. Stephen’s Green to   Dundrum, my contract of employment with Company B was terminated and whether I   received a P.45 in September 2015. I had always believed that I was employed   by Company B, despite changing my work location. I was not told, at the time   of the location change, that my employer would change and I did not receive a   P.45. I thought at the time, that I was doing my boss a favour by moving   temporarily to a different work location.
8. Following   my enquiries at the Department of Social Welfare, in March 2017 the Revenue   Commissioners forwarded a copy of a P.45 apparently issued in September 2015 which   indicated that my job with Company B ended in September 2015. But I did not   receive it either then, or ever and I am adamant about this.
9. As   a result, I was never put on notice that my employment with Company B ended,   either in September 2015 or at all.
10. I   accept that the P60 issued in December 2016 was issued by Company C, that is,   the present Respondent but I do not recall receiving a P.60 in 2015.
11. Company   C is the Respondent against which I am bringing this case.
12. So   while the Revenue may have believed that for the period that I worked in   Dundrum, from September 2015 until February 2017, I was employed by Company   C, I was never told of this.
13. I   did not receive a contract at the time and my pay slips did not state the   name of the employer, rather they just stated the work location, so I did not   query anything.
14. As   I was not advised of the fact that my service was being broken, I feel that   my service should be treated as being continuous at least from when I started   with Company B in February 2011 until when I was told the business was being   closed in February 2017.
15. My   claim for Redundancy is based on the reckonable period being February 2011   until February 2017.
16. I   say that, if it is accepted that I was employed by Company C, then the   transfer of undertaking regulations should apply and I should get the benefit   of the employment period with Company B, and arguably Company A as well, because   their attempt (by getting me to sign a contract in February 2011) to avoid the   provisions of the Transfer of Undertakings Regulations, is illegal.
17. I   am advised that if my period of service with Company B is not taken into   account, despite the fact that I was not aware that my service was being   broken, then I do not have the requisite 2 years to qualify under the   Redundancy Payments Acts.
18. In   relation to the my claim for minimum notice, again, despite having worked for   ten years, I will be treated as only having done just less than 2 years,   which will only provide me with a remedy of 1 weeks gross salary.
19. In   terms of holidays I was not paid for any holidays in 2016 or 2017 so if I was   employed by Company C during this period, I am owed 20 days for 2016 and 3   days for 2017.
20. My   complaint issued in 20 March 2017

No appearance

CA – 00010320-001

Redundancy Claim

This complaint was undefended by the Respondent, as they   did not appear at the hearing.

The first issue to determine is whether the Complainant’s   service was broken in September 2015 when she relocated to work in a different   licensed premises, owned by a different company (even though she did not know   this.)

There is no dispute that a P.45 issued to the Revenue   Commissioners in September 2015. The Revenue Commissioners received it in   September 2015 and later (in 2017) forwarded it to the Department of Social Welfare.   However the Complainant says that did not receive it in 2015 or at all and   she believes that this was done deliberately by the employer (Company B) in   order to keep her in the dark about her long term service being broken.

This case was undefended so there is no one to counter the   evidence that she did not receive this P.45.

This case is brought against Company C and not the   previous employers Company B or Company A. If the case had been brought   against Company B, with whom the Complainant believed had been her employer   since 2011, then it could be argued that (accepting her evidence that she did   not receive the P.45) that the time spent working with Company C, was a period of secondment from Company B. In   this way the employment could be continuous.

However the case has been brought against Company C, not   Company B, despite it being denied by the Complainant that she was ever   employed by Company C.

In order to recover against Company C she would have to   gain the benefit of the transfer of undertaking regulations, however the   transfer of undertaking regulations do not apply in these circumstances.

To synopsise, the following outcomes could be as follows:

1. Either, the Complainant worked for Company A   until 2011, then for Company B until September 2015, when her service was   broken and thereafter she worked for Company C. If this is the case the fact   that Company B and Company C have a director or an owner in common does not   mean that the transfer of undertakings regulations, apply. A transfer takes   place when one company takes over a business of another company. This means   that the assets of the business and the business itself, is taken over by   another company which can include the plant and machinery, premises, good   will and employees. It does not apply where an employee working for one   company moves premises to do a similar job for another company. In such a case, she would have no remedy, as   there is no evidence that such a transfer occurred.

OR

2. She   worked for Company B until September 2015 at which time her service was not   broken because she was not told that there would be a break in her employment   (by moving premises) and thereby her employment continued with Company B, by   way of a secondment to a different company. But in which case her relief would need to   be against Company B not Company C. But the Respondent in this case is cited   as Company C and yet she has no remedy against Company C.

OR

3. Her   service was broken because in September 2015 she did receive the P.45 at the   same time that it issued to the Revenue Commissioners. Therefore she has no   remedy.

As the claim was undefended I accept fully the evidence   given by the Complainant, that she did not receive the P.45 form in September   2017. I found her to be a credible and reliable witness and I am confident   that she was both an able and conscientious employee for the periods of time   that she worked for these companies.   Whether the actions of the Respondent of breaking her service without   telling her was deliberate or not is impossible to say, given the fact that   there was no appearance by them at the hearing, however it is significant   that in September 2015 when Company B took over the business from Company A,   Company B got the employees to sign away all their service rights an exercise   which was both cynical and illegal.

The difficulty lies in the fact that regardless of whether   she was on notice of her employment being broken or not, the case has proceeded   against the wrong employer, namely Company C and not B.

A complaint against Company B for redundancy would need to   issue within 2 years of the termination of that employment.

If Company B still existed she should have brought the   case either it alone or against it as an alternative Respondent to Company C.   In that way she would have had the possibility of relief against one or the   other. But the case was only brought against Company C and the fact that TUPE   doesn’t apply, means that the claim cannot succeed.

Consequently I find that she has no relief against Company   C, ie the present Respondent, for a redundancy payment.

CA- 00010320-002

Minimum Notice

As the employment with the Respondent commenced in   September 2015 and the Complainant did not receive notice that her employment   would be terminated, she is entitled to one week gross salary. Under this   heading I make an award of €450.00

CA-00010320-003

Organisation of   Working Time Claim

The claim is limited to unpaid holidays for the period of   6 months predating the issue of the complaint. Accordingly I award two weeks   wages i.e. €900