Complainant

Respondent

Anonymised Parties

A Chef

A Café/Take Away

Representatives

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-00008315-001

22/11/2016

The claimant was employed as a Chef with the respondent from January 2012 to the 22nd, December 2015.He submitted the respondent was in breach of the Act for failing to pay him his statutory redundancy. The business comprised 2 units – a shop at the front and a take away business at the back of the premises.

The claimant submitted that the business closed down on the 1st.January 2016 - whereupon the claimant took over the take away business. Up to the end of 2015, the claimant had been employed by the respondent company and was paid by direct debit. He was advised in late 2015 by the employer that they were closing the shop and the take away. He advanced that he took over the business on the 1st.Jan.2016. He bought equipment off the respondent and undertook renovations during January 2016.He reopened the take away in February 2016. He submitted that he was unemployed for a month and had to borrow to invest in the new business. He maintained that he was made redundant by the respondent but was denied his statutory entitlement to redundancy.

The respondent denied that the claimant had any entitlement to redundancy - he asserted that in November 2015, the claimant entered negotiations about taking over the take away part of the business. The shop part of the business moved back to their farm site. The respondent submitted that the claimant took over the business free of charge and the claimant purchased equipment and existing stock from them. He submitted that the claimant was never advised that they would close the premises – at the very early stages of negotiation the claimant indicated his interest in taking over the business. The claimant took over the rent agreement they had with the landlord of the premises and renamed the business in his own name – which he operates as a sole trader. It was submitted that the claimant was not made redundant at any stage , by word or by contract .It was contended that the transaction was executed in an agreeable manner as a profitable “ Transfer of Business or Partly Transfer of Business” from the respondent to the claimant.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. I am satisfied that the transfer of the business constituted a transfer of undertakings in accordance with the provisions of TUPE Regulations. Accordingly, in line with the principles set out in EAT   RP395/2006 I find against the claimant and do not uphold the complaint.