ADJ-00007418 conjoined with ADJ 8005

Complainant

Respondent

Parties

A Manager

A Pizza Business

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010155-001

10/03/2017

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

CA-00010155-002

10/03/2017

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

CA-00010155-003

10/03/2017

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

CA-00010155-004

10/03/2017

The Complainant submitted that a transfer of undertakings occurred at his workplace during December 5, 2016, the effect of which caused him to lose his job .This case is con joined with ADJ 8005.

The Complainant, a British National commenced work as a General Assistant at a Pizza Business on 21 September,2015 He signed a contract of employment for a 20 hour week on 21 September .

In October, 2015, he was offered the Managers position, without an increase in wages and worked a 54 hour week over a 6 day week. He worked this arrangement until December 5, 2016 .He received a nett payment of €83 per day and there was a disparity in the electronic pay slips which under recorded the payments, which were made in cash.

Every Sunday, the Complainant submitted that he reported to the owner of his business, Mr A. via text and phone. He submitted records of the exchange of texts from December 2015 to 24 October 2016. He submitted that he reported on weekly sales, expenditure, staff pay, rent and proceeds banked. He had a good relationship with the owner, Mr A.

CA-00010155-001

On 5 December 2016, the complainant arrived for his shift at 3.30 pm as usual to find the owner there in the company of 5 men, he didn’t know. Mr A told him that one of the five men was Mr B, the new owner and that the complainant’s job was gone .This was the first that the complainant had heard of this and was shocked.

The Complainants representative detailed that Mr B told the complainant that he had his own staff, who were relatives of Mr B.

The Complainant then commenced work before he was asked to leave the premises by Mr B. The Gardaí were called, who informed the complainant that he should work for the rest of the shift, which he did. Mr A paid the complainant €2,500 in unpaid holiday pay .

At the end of the day ,At the end of the day , the Complainant was physically pushed   around by the new Owner and his staff   and had €1,000 taken from his pocket .The Complainant submitted a complaint of assault , which is currently before the DPP .The Complainant wrote to Mr B on 13 December seeking payment for his days pay ,one months pay in lieu of notice and compensation for unfair dismissal .

He did not receive a reply and tried again on 6 the January, 2017 without success. He requested a copy of his employee file from Mr A only to be informed on 28 March 2017 that the business had been transferred to Mr Bs’ company business name. His P 45 was attached, where the incorrect PPSN number was listed and the PRSI details were incorrect.

The Complainant contended that he had been unfairly dismissed as Mr A terminated his employment without notice on the day that a Transfer of Undertakings had taken affect at the business .The Complainant had submitted mirrored claims in ADJ 8005 naming the transferee as the Respondent .

Evidence of the Complainant :

The Complainant submitted that he had heard some talk about a new owner taking over the business as the Driver had told him that his own job was safe, based on his local knowledge of the area. During the last week of November, he sought advice on the prospect of a change in the business.

He recalled December 5, 2016, when he attended for work, Mr An introduced Mr B as the new owner. He sought to clear up some details with Mr A and asked him “What is happening am I losing my job?” Mr A told him that he didn’t know and he needed to talk to the new owner, Mr B.

He tried to ascertain what was happening with Mr A but there was conflict surrounding keys and Mr A called the Gardaí to the premises .The Gardaí went upstairs and finally he received €2,500 in payment for unpaid annual leave from Mr A with an undertaking that he would receive the rest on the following Sunday . This did not happen. The Gardaí told him to work until the end of his shift .Mr An agreed to go to the Department of Social Protection Office with him.

He carried on working his shift; he was then informed by Mr B that there was no job for him as his own relatives were coming to work in the business. They all left leaving one of the new staff remaining.

He prepared to cash up the takings for the day when the phone rang for the new staff .He was informed that the new owner was on the phone and had directed that he shouldn’t count the takings .At this point, he stated that he had the receipt and the money in his hands .A scuffle ensued where €1,000 was removed from his person .He left the shop with his €83 for his days work and reported the incident to the Gardaí the next day. He paid the Driver €163.

Of the three staff working at the shop before December 5, 2016 only the Driver was retained, the other colleague had booked his ticket home to Pakistan.

The Complainant submitted a copy of a text dated 7 December which stated :

“ Come tomorrow , im giving ur bank card and landlord bank card and Monday money and bring my P45”

The Complainant stated that he received his P45 in March 2017 with omissions by his former employer .He gave evidence of loss and Mitigation.

The Complainant stated that the dismissal had a devastating affect on him, socially and financially .He is Father to a young son and has found it hard to get work without a reference. He was very disappointed with the manner in which he had been treated.

CA-00010155-002

In accordance with his contract of employment, the Complainant should have been given one months notice when his employer terminated his contract of employment without notice.

CA-00010155-003

In accordance with his contract of employment, the complainant was entitled to pay for December, 2016.

CA-00010155-004

From September 2015 to 5 December 2016 there were 10 public holidays for which the complainant did not receive any extra pay or holidays.

There was no appearance by or on behalf of the Respondent at Hearing.

The Respondent made a written submission to the WRC dated March 28, 2016, which was copied to the complainant. The Respondent disputed the claims given that he had sold the business to a named company on 5 December ,2016.He stated that the complainant had been dismissed that day for gross misconduct and had been barred from the premises .

CA-00010155-001 The Respondent submitted that he had sold the business to Company B on 5 December 2016 and was not liable for the complainant’s dismissal.

CA-00010155-002 The Respondent submitted that he had sold the business to Company B on 5 December 2016 and was not liable for the complainants notice period.

CA-00010155-003 The Respondent contended that he had sold the business on 5 December, 2016 and had no liability for the complainant’s wages.

CA-00010155-004 The Respondent contended that all holiday pay had been discharged in full and submitted a copy of a pay slip dated 5 December 2016.

I have given consideration to the Complainants Oral and Written presentations. I did give consideration to the short written submission by the Respondent , but in the absence of a company representative at the hearing ,or the opportunity for cross examination to prevail , I found the document to be of limited probative value .Given that the burden of proof rests with the Respondent in the claim for Unfair Dismissal and given the clear disputes contained in the case , I am left to conclude that the non appearance of the Respondent was unhelpful to my consideration of the facts of the case .

CA-00010155-001 This is a claim for Unfair Dismissal based on the submission that the complainant’s employment was terminated on the occasion of a Transfer of Undertakings .There was no live claim under the Transfer of Undertaking Regulations.

Council Directive No 2001/23/EC of 12 March 2001(the Acquired Rights Directive) is the third Directive on the approximation of the laws of the Member states relating to the safe guarding of employees’ rights in the event of transfers of undertakings, business or part of undertakings or businesses.

In Murphy and Regan , Employment Law , Bloomsbury , Second Edition , 2017,Gary Byrne, outlines the history of the adoption of the wording of the Directive verbatim by way of Statutory Instrument on 11 April ,2003 contained in :

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.These regulations effect compliance with the 2001 Acquired Rights Directive.

In Suzen V Zehnackerr Gebaudereinignung GmbH Krankenhaussservice , the ECJ   observed :

“ The aim of the Directive is to ensure continuity of employment relationships within an economic entity ………The term economic entity thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective “

The Irish Regulations apply to any transfer of a business from one employer to another employer as result of a legal transfer, providing it retains its identity.

I noted the text sent by the complainant to the respondent at 12.15am on the morning of 5 December, 2016, where he totalled the takings. This was followed by a request to lodge the takings by the Respondent. The Employee: Employer relationship was still intact at that time. This was overtaken by the confirmation of sale at 3.30 pm later that day.

I am satisfied based on the uncontroverted evidence of the complainant and the application of the Regulations , that a transfer of undertakings occurred from Business A , where Mr A was the owner ,employer and now Transferor to business B, where Mr B was now the owner , employer and now   Transferee sometime in the early part of December 5, 2016.

Regulation 8 imposes an obligation on the Transferor to inform and consult employees regarding the date, reason and legal implications of the transfer, not later than 30 days before the transfer occurs. Duffy Meats ltd T/A Kerry Foods and William D’Arcy et al TUD 161 Labour Court, March 2016.

I could not establish any consultation with regard to an impending change of ownership outside the rumour mill.

In An EAT case of Guidon V Hugh Farrington and Ushers Island Petrol Station [1993] ELR 98, where the claimant worked at a Seven Eleven store, owned by Mr Farrington .A receivership and surrender of lease followed on 14 June 1991.The claimant returned to work the following Monday, 17 June, 1991 and was informed that her employment had been terminated. Her claim for Unfair Dismissal against the transferee succeeded as the dismissal of the claimant on the grounds of transfer was held to be prohibited by the EU Directive and Irish Regulations.

Notwithstanding the serious deficits in the management of an impending sale of business and its predicted impact on the complainant, I find that the Respondent was not the employer for the purposes of the Unfair Dismissals Legislation where the Employer is defined in Section 1 of the Act as:

“Employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment.

I find that I lack the jurisdiction to rule on this case.

CA-00010155-002. The Complainant is seeking the contractual notice terms of 4 weeks pay in lieu of notice. I have found that a Transfer of Undertakings occurred on 5 December 2016 and the Respondent is not the correct employer for the purposes of this claim.

CA-00010155-003 The Complainant confirmed in evidence that he had made provision for his days pay in the takings of 5 December and had placed the €83 in his pocket .I find the complaint to be not well founded .

CA-00010155-004. I have found that a Transfer of Undertakings occurred on 5 December 2016 and the Respondent is not the correct employer for the purposes of this claim.

Unfair Dismissal, Minimum Notice, Payment of Wages, Annual Leave.