ADJ-00006016

Complainant

Respondent

Parties

A Car Park Operative

A Car Park Operator

Representatives

Dorothy Donovan, B.L., instructed by McDonald Solicitors

Mareid McKenna, B.L., instructed by Arthur Cox Solicitors

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-00008262-001

18/11/2016

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

CA-00008262-002

18/11/2016

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

CA-00008262-003

18/11/2016

The complainant was working for Company A (the respondent) since 2007 and was assigned to work in the car park ay this particular location when his employer secured a contract to operate same. Company B subsequently became the owner of the car park but Company A continued to operate the car park under contract with the new owner. In October 2016 Company A was informed that their contract to run the car park was being terminated in one month’s time and that the operation of the car park was from then on 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.

The complainant was dismissed.

If it is determined that there was no transfer of undertakings then the termination of the complainant’s employment by the respondent is an unfair dismissal. In the alternative the complainant has been made redundant.

The complainant is entitled to six week’s salary in lieu of notice.

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

As the complainant’s employment was not terminated by the respondent there is no liability as regards Minimum Notice legislation.

Similarly the complainant was not dismissed nor made redundant by the respondent and therefore the Redundancy Payments Act does not apply to the complainant.

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-00006180, ADJ-00008007, ADJ-00006190, ADJ-00006189, ADJ-00006014 and ADJ-00008161.

In ADJ-00006176 I considered the complaints under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and determined that the Regulations did not apply in regard to this matter. Having made that decision it follows that the complainant’s employment did not transfer and that it remained with the respondent.

The complainant has lodged complaints under both the Unfair Dismissal Acts, 1977 – 2015 and the Redundancy Payments Acts, 1967 – 2014. In considering the matters arising in the case before me I determined that the precedent offered in the EAT Decision in UD 200/97 (Cullen v Noonan Cleaning Co. Ltd. v CPS Cleaning Services Ltd.) was applicable in this case. The EAT decided that there was not a transfer of undertaking and then considered the claims under Unfair Dismissals, Redundancy Payments and Minimum Notice legislation.  The EAT concluded that the situation was not covered by the Unfair Dismissal Acts as follows:

“The claimant has lodged claims under The Unfair Dismissal Acts, the Redundancy Payment Acts and the Minimum Notice and Terms of Employment Acts. The claim for unfair dismissal must be decided under that legislation and the only tangible area of that legislation that may remotely cover this situation is Section 13 of the Unfair Dismissal (Amendment ) Act, 1993, where an employee is working for a person acting as an employment agency on a third party’s premises the employee may be considered to be an employee of the third party. It was agreed by the parties to this case that such a position was not the case and has no application here.

It follows then that this was a redundancy situation and the claim under the Unfair Dismissal Acts fails. The claim under the Redundancy Payment Acts succeeds against the first named respondent as does the claim for Minimum Notice.”

It was stated by the respondent’s Managing Director that, without prejudice to their position regarding a transfer of undertaking, he had sought alternative positions for the complainant and his colleague. None were available locally but vacancies for similar positions in Dublin were identified. These positions were not acceptable to the employees. The locations mentioned were in excess of 150kms from where they were in employment and therefore did not constitute suitable alternative employment within the meaning of Section 15 of the Redundancy Payments Act, 1967.

I therefore find that the complaint of Unfair Dismissal fails but that the complaints under the Redundancy Payments Acts and Minimum Notice Acts succeed.

Complaint No. CA-00008262-001:

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

Complaint No. CA-00008262-002:

This is a complaint under the Redundancy Payment 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:     1 October 2007

Employment Ended:               14 November 2016

Gross Weekly Pay:                   €472.62

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-00008262-003:

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 €1,890.48 in this regard.