ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013882

Parties:

	Complainant	Respondent
Anonymised Parties	Assistant Cook	Food and Beverage Provider

Representatives

Claimant

The respondent did not attend and was not represented at the hearing

Complaint(s):

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-00018194-001	28/03/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00018194-002	28/03/2018

These are duplicate complaints.

Date of Adjudication Hearing: 29/08/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 ] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The claimant submitted that she was employed with the respondent from the 22nd.March 2014 to the 2nd.October 2017 as an Assistant Cook.She had no contract of employment and submitted that she had been advised by the respondent that she would be entitled to redundancy.She referred to other staff who had been paid redundancy and submitted that the respondent was in breach of the Act for failing to pay her redundancy. She was asked by the respondent to remain at work until the very last day in operation .The claimant continued in employment with the new franchisee for 2-3 weeks and commenced an extended period of sick leave.

Summary of Respondent’s Case:

The respondent did not attend and was not represented at the hearing.

In a pre hearing submission the respondent’s representative contended that TUPE applied to the transfer of the business and that as the employees continued in the employment of the new franchisee , redundancy did not arise.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.]

I have reviewed the evidence presented and have concluded that the transfer of the business meets the definition of a transfer of undertaking under Regulation 3 of the European Communities (Protection of Employees on Transfer of Undertakings ) Regulations 2003 , that the business continued to operate and consequently redundancy does not arise.Accordingly , I find against the claimant and do not uphold the complaint.

Dated: 14th December 2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea