ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014130

Parties:

	Complainant	Respondent
Anonymised Parties	A Cleaner	A Services Company

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-00017350-001	08/02/2018

Date of Adjudication Hearing: 06/02/2019

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 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).

Background:

The Complainant was seeking payment of her statutory redundancy.

Summary of Complainant’s Case:

The Complainant was employed as a Cleaner in November 2014.

She worked on average 25 hours a week at 10.05 Euros per hour.

Her contract is silent as to her place of work.

In April 2017 she was informed she was told her contract was being terminated as where she worked the Customer was bringing the cleaning contract back in house.

The Respondent alleges the Complainant is not entitled to a redundancy payment due to a Transfer of Undertaking with the Customer. We contest that any Transfer took place and no discussion took place regarding a transfer.

Summary of Respondent’s Case:

The Respondent was notified by a client that they were terminating the cleaning contract with the Respondent with effect from May 22nd 2017, which was subsequently extended to June 11th 2017 and the Respondent was informed the client was bringing the service inhouse.

On foot of being advised of this change the Respondent commenced the process of transferring affected staff to the client in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) regulations 2003 and the client was informed of this position and that the Respondent was going to meet with staff about the transfer.

Correspondence passed between the Respondent and the client with the client maintaining that the Regulations did not apply. During this period the Respondent became aware of the client meeting with the Respondent staff and offered them jobs and were inducting them into their organisation.

By the end of June all staff were offered work by the client and the Complainant had commenced work with the client.

The Respondent did not terminate the Complainants employment and continued to affirm their belief that the Regulations applied to the Complainant.

In August 2017 a request was received from the Complainants solicitor to provide the Complainant with the P45 and this was complied with.

The Respondent contests that the Complainat was made redundant and that no redundancy payment is due.

Various legal arguments were put forward by the Respondent to support their position.

Decision:

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.

In is not possible to take into account in this decision what may or may not have happened to other staff who were employed by the Respondent and may have transferred to their client, in various unverified circumstances, as this information is only hearsay and the “client” is not a party to a Transfer of Undertaking claim in this case. It is also clear from the submitted information that the “client” disputed that a Transfer of Undertaking was taking place and it also clear that the Complainants employment ceased with the Respondent and while she may have subsequently taken up employment with the “client” it was not as a result of a transfer of undertaking nor did her service with the Respondent transfer to the “client”. The only decision that the Adjudicator can make in these circumstances is whether, based on the submissions presented, did a redundancy take place or not. I have no jurisdiction under the Redundancy Payments Act to determine if a Transfer of Undertaking has taken place and particularly in a situation where the party that it is alleged the transfer took place to was not a party to these proceedings and is obviously contesting that a transfer took place.

A Redundancy is defined under Section 7.1 of the Act as follows

	.	“An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—
		he has been employed for the requisite period, and
		he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.”
		Paragraph 2.A of Section 7 states “For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to
		the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes 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,”

I find that the Complainants employment was terminated as a result of the Respondent ceasing that particular type of work in the “place where the employee was so employed” and the Complainants employment terminated due to redundancy. Under Section 7.1 of the Act the Complainant is entitled to redundancy providing she was a Contributor under the Social Welfare Acts 1952 to 1966 prior to her termination of employment and subject to her employment meeting these requirements and having been insurable under the Social Welfare Acts I find her appeal under the Redundancy Payments Acts 1967 to 2007 succeed and I award the Complainant a redundancy lump sum based on the following;

Date of Commencement; November 15th 2014 (or such other date in November 2014 as established by the Respondent)

Date of Termination June 11th 2017 Rate of pay Gross per week; 251.25 Euros.

Dated: 5th April 2019

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy payment