Complainant

Respondent

Anonymised Parties

Electrician

Electrical Contractor

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-00022695-001

18/10/2018

The Complainant seeks statutory redundancy payment from the Respondent.

The Complainant worked as an Electrician for the Respondent from 1st February 2008 to 31st August 2018, when the Respondent relinquished the contract he held and effectively closed down his business.   It is accepted that the Complainant went to work for the business the contract had been with but it is submitted that the Complainant is entitled to a redundancy payment.

The Complainant began working as an apprentice Electrician on 1st February 2008 and qualified on 6th July 2010.   He was taken on and employed by his uncle who is the Respondent in this case.                 From 14th April 2014 the Complainant worked at a specific plant (“Company C”) and this was his only place of work. In early 2018 “Company C” approached the Complainant to discuss being taken on as a direct employee. The Respondent talked directly with the management of “Company C” to arrange for the Complainant to be taken on as an employee. The Complainant was subsequently interviewed and was successful.   The Respondent only decided to cease his contract with “Company C” once he had confirmation that his nephew would have the same work with the company. On Friday 31st August 2018 the Complainant finished work for the Respondent and on Monday 3rd September 2018 he returned to work in the exact same place doing the exact same job.

Section 9 (1) of the Redundancy Payments Act 1967 provides that for the purposes of the Act an employee must be dismissed and the employee shall be taken to be dismissed by the employer if

“(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice..” In this case, I note that there is a P45 for the Complainant terminating his employment with the Respondent with effect from 1st September 2018.     I note the Respondent’s evidence that the Complainant took up employment in the same place directly following the termination.

Section 9 (3) provides:

“(2) An employee shall not be taken for the purposes of this Act to be dismissed by his employer if-

(i) He is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment,

(ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer,

(iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which –

(A) sets out the terms and conditions of the employee’s contract of employment with the new employer,

(B) specifies that the employee’s period of service with the previous employer will, for the purposes of this Act be regarded by the new employer as service with the new employer…”

I note the Respondent’s frustration at what could be deemed to be an opportunistic claim on him by a relative who he had gone out of his way to help. However, the terms of the Act as set out in Section 9(3) above are designed to preserve employees’ rights and service. The Transfer of Undertakings (Protection of Employees) regulations provide similar protections. Had the Respondent and the new employer arranged that a transfer take place, he would not have been in the predicament caused by the situation here. In the circumstances of the technical wording of the Act I find the claim to be well founded and decide that the Complainant be paid the amount of €13,308 statutory redundancy payment.