Complainant

Respondent

Anonymised Parties

A retail worker

A retailer

Representatives

Mark J Byrne BL instructed by Elaine Hickey, Tracey Solicitors.

Matthew Holmes BL instructed by Mary Cullen, Solicitor.

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-00020086-001

29/06/2018

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

CA-00020087-001

29/06/2018

The Complainant commenced her employment with the Respondent on or about 11th October 2010.

The Complainant was working at one location in Dublin 8 from commencement and in March 2013 was transferred to another location (as per the terms of her employment contract) and promoted to the position of Deli Manager. In early June 2017 the Complainant was informed that she was being transferred to a different store and would be starting there on June 12th, 2017.

The Complainant received a P45 dated 30th July 2017 and when she queried this she was informed that the business had been sold.

The Complainant lodged her complaint with the Workplace Relations Commission on 29th June 2018. The complaint is under the Redundancy Payments Act, 1967.

The Complainant commenced her employment with the Respondent on or about 11th October 2010. The Complainant has in her possession, for inspection by the Adjudicator, a copy of her most recent contract of employment with the Respondent which is dated 20th March 2013. Within the body of that contract is a reference to the fact that the Complainant did in fact commence her employment with the Respondent on 11th October 2010.

It was an express term of the Complainant’s contract of employment with the Respondent that her primary place of work was subject to change as the employer operated a number of similar premises.

In or about February / March 2013 the decision was taken by the Respondent to move the Complainant to its store in James’ Street and to promote her to the position of Deli Manager.

On or about 8th June 2017, the Complainant was informed that she was being moved once again to the Respondent’s premises located in Inchicore. She was informed that she would take up her duties in that premises on 12th June 2017. The Complainant duly commenced working in the Inchicore premises on the assigned date. Unfortunately, she was involved in a work-related accident on 14th June 2017 as a result of which she sustained personal injuries. The Complainant therefore went on sick leave on 14th June 2017.

The Complainant received a P45 (number 1) on 11th June 2017. The Complainant contacted the Respondent’s Accounts Department in order to ascertain why she had received same without prior notice.   The servant or agent of the Respondent informed the Complainant that this was simply done as a method of switching her wages from the store in James’ Street to the store in Inchicore and that it served no other function.

The Complainant received a second P45 (number 2) on or about 16th July 2017. The Complainant had no knowledge or understanding of why she received same and she was not aware of this company or having ever been employed by it. The Complainant again contacted the Respondent’s Accounts Office and was told to ignore the document as it was simply being used to ensure that she was paid her wages. The Complainant accepted the expertise of the Accounts Department and took no further action.

The Complainant received a third P45 (number 3) on or about 30th July 2017. P45 (number 3) was issued from the same company as P45 (number 1). It has now been established that the Respondent issued same to the Complainant.   The Complainant emailed DK in Head Office to take issue with having received another P45. The Complainant was advised that on this occasion the P45 was in fact issued to her by the Respondent on the account of the business having been sold. The Complainant was advised that the new owner would have agreed to take on all staff.

The Complainant contacted the new owner and arranged to meet with him. She enquired about whether he intended to hire all the staff that had previously worked for the former owner on their previous contractual terms. He explained that she was not employed by him, and that he would not hire the Complainant unless she agreed to new terms and conditions of employment. He also advised the Complainant that she would not be paid any redundancy.

REDUNDANCY

The Adjudicator will be aware that as the Complainant’s employer, the Respondent was required by law to inform the Complainant about the fact that she was to be made redundant using Part A of Form RP50. The Complainant ought to have been given a minimum of two weeks’ notice prior to the date of dismissal. The Respondent failed and/or neglected to provide the Complainant with any notice of her proposed dismissal for redundancy.

The Respondent was obliged to provide the Complainant with a redundancy certificate (in the form of Part B of the RP50) not later than the date of dismissal. The Respondent failed in its obligations to the Complainant in this regard. In fact, a servant or agent of the Respondent stated “no one has lost their jobs, it is just a change of ownership”. This statement proved to be misleading and when the Complainant attempted to arrange for a return to work she was advised by the new owner that she no longer held a position in the business and that she should take any unresolved issue up with her former employer.

In circumstances where no transfer of undertaking was ever agreed between the Complainant, the Respondent and the new owner of the stores in question, and in circumstances where the Complainant has to date received no offer of redundancy for her unbroken service with the Respondent, the Complainant respectfully submits that she is entitled to statutory redundancy and brings the within claim under Section 39 of the Redundancy Payments Act, 1967.

The Respondent’s office manager attended the hearing and gave evidence. She informed the hearing that she managed all staff issues, payroll issues and any HR issues that may arise.

In evidence the office manager stated that in relation to the Complainant everything would remain “as is” with the new owner of the shop and that her job was safe. It was her understanding that there would be jobs for all staff with the new owners.

The office manager stated that she had sent an email to the Complainant on 9th August 2017 stating that “no one has lost their jobs, it is just a change of ownership”. The Complainant was advised to make contact with the new owner to “let him know who you are”.

It would appear that the Respondent is claiming that this was a transfer of undertakings and that the jobs of the staff would transfer to the new owner. In this instant case it has been established that no consultation whatsoever took place to suggest that this was a transfer under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131/2003).

In relation to the Complainant she contacted the new owner as advised by the Respondent’s office manager and was informed that the new owner would offer her a job on completely different terms and conditions. She was also informed that had no entitlements to any job, let alone on her previous contractual conditions. The new owner suggested that she take up any issues she may have with her former employer.

This is a case of redundancy, the definition of redundancy in Ireland is set out in the Redundancy Payments Act 1967 and amended by the Redundancy Payments Acts 1971 – 2003:

An employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

a)      The fact that his employer has ceased, or intends to cease, to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or ……….

In conclusion I believe, under the Redundancy Payments Acts 1967 – 2014, that the complaint as presented is well found and order the Respondent to make the statutory redundancy payment of €6,579.00 to the Complainant within 42 days from the date of this notice.

As outlined above.

Redundancy Payments Act