ADJ-00009379

Complainant

Respondent

Anonymised Parties

A teacher

A Montessori

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-00011661-001

26/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011661-002

26/04/2017

The complainant commenced employment with the first named respondent, (herein after referred to as ‘G’) in September, 2006. On the 28^th April, 2015 the complainant went on out certified sick leave. She was suffering from stress. She remained out on sick leave, with little or no communication from her employer until August, 2016. In August she contacted Mr. X who effectively owned and operated ‘G’ requesting information about the new school term. Mr. X responded stating:

-          G will not be re-opening in September.

-          A decision had been made to enter into a liquidation process.

-          Issues of redundancy and statutory entitlements would be dealt with by the insolvency practitioner.

-          Certain parties some of whom were connected to ‘G’ had registered a new company ‘W’ , the second named respondent ( herein after referred to as ‘W’) and it was his belief that the new entity would honour her terms and conditions pursuant to the transfer of Undertakings regulations.

On the 15.03.17 the complainant contacted the principal of ‘W’ stating that she had been informed that there had been a transfer of undertakings from ‘G’ to ‘W’. On the 16.03.17 the principal of ‘W’ replied stating that there had been no transfer of undertakings and there was in fact no connection between ‘G’ and ‘W’.

W was incorporated in July, 2017.

‘W’ trades out of the same premises as ‘G’. The premises are owned by the local rugby club. ‘W’ carries out the same business as ‘G’ and one of the employees of ‘G’ now works for ‘W’. She is the company secretary of ‘W’ Many of the children who attended at ‘G’ are now enrolled at ‘W’.

The second named respondent is a stranger to the within proceedings. Mr. X ran ‘G’. He essentially ran it into the ground, closed up shop, stripped the premises of everything and set up a new business a few miles down the road, taking many of the students with him. Many of the local students were left with no pre-school to go to. A grandfather of one of the children, who is now on the board of management of ‘W’ decided to take matters into his own hands and start up a new entity so that the local children and their parents wouldn’t be disappointed come September. He funded the venture himself. There never was any connected between the old entity and the ‘W’. ‘W’ was opened out of necessity and was done so without any consultation or discussions with Mr. X.

I am satisfied based on the facts that have been presented to me by both the complainant and the respondent, as is set out above, that no transfer of undertakings took place between ‘G’ and ‘W’. I am satisfied that Mr. X entered ‘G’ into liquidation having run it into the ground and started up again a few miles down the road. I am further satisfied that the incorporation of ‘W’ was done so with no connection whatsoever to ‘G’ and in circumstances where the community needed the entity and one of the children’s grandparents was in a position to fulfil that need.

On that basis, I find that the complaint fails.

Transfer of Undertaking.