Complainant

Respondent

Anonymised Parties

A Shop Assistant

An Employer

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-00009915-001

26/02/2017

The Complainant stated that she commenced employment as a Shop Assistant in a painting and decorating retail premises on the 2^nd of April 2013. She also stated that during the first week of June 2016 she was told verbally by the owner that the business was being sold at the end of that month and that the new owners intended to close the shop and open a new business in its place. The Complainant stated that her employer advised her that he did not know if she would be kept on or not and that it would be in her best interests to look for alternative employment. However, he asked that she stay on for a period of 4 to 6 weeks while the existing stock was sold. She contends that the owner accepted that she was entitled to a redundancy payment and this would be processed, although she was not provided with a RP50 form or any other formal notice of redundancy.

Subsequently, when the sale was completed, the Complainant stated that spent a short period working for the new owners, whose business was interior design and furniture sales. Soon after, she took up alternative employment and left of her own accord.

The Complainant stated that she made regular phone calls to her previous employer over a period of three months. She stated that she was promised that her redundancy payment would be processed and transferred to her bank account but it did not happen. Eventually, the owner explained that his Accountant had advised him that he was not allowed to pay redundancy as a transfer of undertaking had taken place and her employment had not ceased.

On the 16^th of December 2016, the Complainant sent her previous employer a RP77 form requesting a lump sum redundancy payment as the termination of her employment constituted redundancy and she was entitled to a RP50 form and payment.

The Complainant stated that the Respondent contacted her on the 19^th December 2016 to confirm he had received the RP77 form but he disputed her entitlement to payment. However, he agreed to get back to her. She did not hear from him and attempted contact again one month later.

The Respondent accepted in principle the version of events provided by the Complainant. However, he said he was acting on his Accountant’s advice that as the Complainant took up employment with the purchaser of his business, the transfer of undertaking regulations applied and he could not process a redundancy payment.

The Respondent’s business activity was in paint/decorating products and equipment sales where the Complainant was employed for over three years as a Shop Assistant.   The new business owners operate a furniture and interior design sales and consultancy business.

Regulation 3 of TUPE specifies that “transfer” means the transfer of an economic entity which retains its identity and involves a consideration of factors including the degree of similarity between the activities carried on before and after the transfer. There must be the transfer of “an economic activity which retains its identity” and it is expected that the activities being performed after the change of ownership are fundamentally the same as those carried out beforehand. This was clearly not the case in this instance and therefore the Transfer of Undertakings Regulations do not apply.

The Respondent is not afforded protection under the Transfer of Undertakings Regulations and the Complainant’s termination of employment constitutes redundancy. Accordingly, the Complainant is entitled to a redundancy lump sum payment under Section 39 of the Redundancy Payments Act, 1967 - 2012.   Having regard to her gross weekly pay and employment service, I award the Complainant €3,835 in compensation.