Complainant

Respondent

Anonymised Parties

Car Park Operative

Car Park Operator

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00008261-001

18/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00008261-002

18/11/2016

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

CA-00008261-003

18/11/2016

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

CA-00008261-004

18/11/2016

The complainant was working for Company A (the respondent) since 2008 and was assigned to work in the car park at this particular location in 2013 when his employer secured a contract to operate same. Company B subsequently became the owner of the car park but contracted Company A to continue to operate the car park. In October 2016 Company A was informed that their contract to run the car park was being terminated with a month’s notice and that the operation of the car park from then on was the responsibility of Company B. Company A maintained that there was a Transfer of Undertaking and that the complainant’s contract should transfer accordingly. Company B stated that the legislation did not apply in these particular circumstances and that the complainant’s employment was the responsibility of Company A. The complainant was left without employment with effect from 14 November 2016.

If there was no Transfer of Undertakings the respondent terminated the complainant’s employment on 14 November 2016.

The employment was terminated without fair procedures.

If because of the failure to renew the contract there was no work for the complainant then accordingly the complainant is entitled to a redundancy lump sum payment.

The complainant did not receive the statutory minimum notice and was not paid in lieu of notice.

At the time of termination the complainant was due 5 day’s holiday pay.

The complainant was not dismissed by the respondent.

The complainant’s employment transferred by operation of the law to Company B. The complainant did not elect not to transfer to Company B.   The complainant on the date of transfer was not employed by the respondent and could not therefore be dismissed.

As a result of the transfer the respondent has no liability for the payment of Minimum Notice.

The complainant was not dismissed nor made redundant by the respondent. Therefore no liability arises for a Redundancy payment.

Any holiday entitlements are a matter for the transferee.

These complaints were heard in conjunction with the complaints contained in the following complaint forms all of which have the same common background:

ADJ-00006176, ADJ-00006016, ADJ-00006180, ADJ-00008007, ADJ-00006190, ADJ-00006189 and ADJ-00008161.

In ADJ-00006176 I considered the complaints therein and decided that the Regulations under the European Communities (Protection of Employment on Transfer of Undertaking) Regulations, 2003, did not apply in this matter. It therefore follows that the complainant’s employment did not transfer and remained the responsibility of the respondent.

In ADJ-00006016 I examined the complaints therein and decided that in the circumstances the complaint under the Unfair Dismissal Acts, 1977 – 2015 failed and, given that the same events form the background to these complaints, I so decide in this case. For the same reasons I find that the claims under the Redundancy Payments Acts, 1967 – 2014, the Minimum Notice and Terms of Employment Act, 1973 and the Organisation of Working Time Act, 1997, are successful.

Complaint No. CA-00008261-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. I find that the complaint fails and is accordingly dismissed.

Complaint No. CA-00008261-002:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012. I find that the complainant was made redundant and that the complaint against the respondent succeeds. The complainant is entitled to a lump sum payment based on the following criteria:

Employment Commenced:       21 March 2008

Employment Ended:                 14 November 2016

Gross Weekly Pay:                     €463.57

Any award under the Redundancy Payments Acts is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts.

Complaint No. CA-00008261-003:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. I find this complaint to be well founded. Section 4(2)(c) of the Act states:

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be-

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks

I order the respondent to pay the complainant the sum of €1,854.28 in this regard.

Complaint No. CA-00008261-004:

This is a complaint under the Organisation of Working Time Act, 1997. I find this complaint to be well founded.

Section 23(1) of the Act states:

(a)   Where –

(i)                  an employee ceases to be employed, and

(ii)                the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

         the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the weekly rate, that he or she would have received had he or she been granted that annual leave.

I order the respondent to pay the complainant the sum of €463.57.