Complainant

Respondent

Anonymised Parties

A Kitchen Porter

A Restaurant

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-00018587-001

18/04/2018

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

CA-00018588-001

18/04/2018

The case concerns a Kitchen Porter and the alleged non-payment of redundancy from the date of the commencement of his employment in 2004.

The Complainant began employment in the Restaurant at the centre of this case on the 1st June 2004. He was made Redundant on or about the 6th April 2018.

The Respondent refused to pay Redundancy back to the date of commencement of employment in 2004. He would only assume liability for the past year when he was the owner.

The Complainant pointed out TUPE obligations and the terms of the Redundancy Payments Act, 1967 as the grounds for his claim for the entire period of service to be reckoned.

The Complainant supplied for inspection Tax and Social Welfare records to show a period of continuous employment back to 2004.

Did not attend the Hearing and did not submit any written evidence or explanation.

I was satisfied that proper notice of the Hearing had been served on the Respondent.

3:1     The Law.

Section 20 - subsections 2 and 5(a) of the Redundancy Payments Act ,1967 are relevant.

Redundancy Payments Act,1967

Change of ownership of business.

20.— (1) This section shall have effect where—

( a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or of a part of such a business, and

( b) in connection with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as the previous owner) terminates the employee’s contract of employment, whether by or without notice.

(2) If, by agreement with the employee, the person (in this section referred to as the new owner) who immediately after the change occurs is the owner of the business or of the part of the business in question as the case may be renews the employee’s contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment, section 9 (2) shall have effect as if the renewal or re-engagement had been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner).

) Subsections (1) to (4) shall have effect (subject to the necessary modifications) in relation to a case where—

( a) the person by whom a business, or part of a business, is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or

( b) the persons by whom a business, or part of a business, is owned immediately before a change (whether as partners, trustees or otherwise) include the person by whom, or include one or more of the persons by whom, it is owned immediately after the change,

as those provisions have effect where the previous owner and the new owner are wholly different persons.

(5A) In a case mentioned in subsection (1) ( a ), the new owner shall be estopped from denying that an employee was in continuous employment (within the meaning of Schedule 3) unless, within 26 weeks of the change of ownership, he notifies the employee of his intention so to deny. ]

(6) Nothing in this section shall be construed as requiring any variation of a contract of employment by agreement between the parties to be treated as constituting a termination of the contract.

Accordingly, in plain English, the Complainant, who satisfies the above requirements, has continuity of service for Redundancy purposes across all the periods of his employment at the Respondent Restaurant back to 2004.

3:2       Summary Conclusions.

The Complainant produced adequate written evidence such as Revenue Tax Documents covering the period back to 2004. The Respondent did not attend the hearing. I took the Complainant to be trustworthy in his supporting oral evidence.

Accordingly, I order under the terms of Section 39 of the Redundancy Payments Act ,1967 that the Complainant receive a statutory redundancy payment for the period from 1st June 2004 to the 11th April 2018. The payment to be calculated in accordance with the rules and regulations of the Department of Social Protection. The payment to be made by the Respondent employer.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section 3 above for detailed reasoning.

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

CA-00018587-001

Claim is well founded.

A Statutory Redundancy Payment in favour of the Complainant, to cover the period from 1st June 2004 to the 11th April 2018, is to be paid by the Respondent employer.

The Rules of the Department of Social Protection to apply to the calculation.

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

CA-00018588-001

A duplicate of the above Complaint and was withdrawn.