ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016503

Parties:

	Complainant	Respondent
Anonymised Parties	A Catering Worker	A Restaurant

Representatives

Representative

Owner/ Manager

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00021447-001	29/08/2018

Date of Adjudication Hearing: 27/11/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 & Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003 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 issues in contention concern a Restaurant and the transfer of obligations between a new owner and the former owner. It has a bearing in relation to Redundancy payments for the Complainant.

1: Summary of Complainant’s Case:

The Complainant worker for the Restaurant in question since the 1st June 2004. He was made Redundant on the 11th April 2018. The new Owner, the Transferee, did not, initially, accept any obligations regarding service of the Complainant prior to his taking over the business.

While this may have changed somewhat in recent times a Formal Decision is now required to validate the Complainant’s service and entitlements.

2: Summary of Respondent’s Case:

The Respondent attended the Oral Hearing accompanied by an experienced friend. It was accepted that a liability may now arise in relation to the transfer of undertakings. This had happened by inadvertence and lack of knowledge of the relevant law. Undertakings given to him by the former Owner now had to be examined closely.

It was most unfortunate, and he was seeking to have the matter resolved in negotiations with the former owner -the Transferor.

3: Findings and Conclusions:

There is no debating the basic facts of this case. The provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) clearly were not observed in this case.

Section 10 (5) of the Regulations provides as follows

(5) A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

(a) declare that the complaint is or, as the case may be, is not well founded;

(b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

(c) require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,

Accordingly, with Reference to Sub Section 5(c) (ii) I direct that any Redundancy payment to the Complainant be based on his complete service to the 1st June 2004 – i.e. a Redundancy Payment be based on Service from 1st June 2004 to the end of the employment on the 11th of April 2018.

As the payments received by the Complainant varied quite widely I have taken an average of the last Three years prior to the ending of the Employment and subject to the oversight of the Department of Social Protection I estimate that his average weekly pay was €145 Gross. (Wage figures supplied to the Oral Hearing from copy Dept of Social Protection correspondence).

A Redundancy Lump sum of 28.74 weeks (Dept of SP calculator) is due and equates to € 4,167.30

Accordingly, under section 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) I make an award of €1,000 in respect of Breaches of SI. No 131 and additionally direct that a Redundancy payment of € 4,167.30 be made to the Complainant.

It was not clear at the Oral Hearing as to whether or not a parallel claim under the Redundancy Payments Act, 1967 was also in contemplation. If this is the case then dual payments cannot arise and a Redundancy payments award under the 1967 Act, if any, should take precedence as regards the Redundancy element.

Decision:

Section 41 of the Workplace Relations Act 2015 and the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the relevant Act and Statutory Instrument.

Act	Complaint/Dispute Reference No.	Summary decision /Please refer to Section Three above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00021447-001	The Complaint is well founded. An award of € 1,000 is made for Breaches of the Regulations and an additional €4,167.30 is awarded to the Complainant by way of a Redundancy Lump Sum. The taxation of these award to be considered in conjunction with the Revenue Commissioners.

Dated: 29th April 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

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