ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00018678

Parties:

Complaint(s):

Date of Adjudication Hearing: 31/01/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Background:

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,Section 27 of the Organisation of Working Time Act, 1997 ( referred to below as the OWT Act ) and Section 39 of the Redundancy Payments Act, 1967 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).

At the date of the joint Oral Hearing (31st January 2019) on Adj 14987, Adj 18441 & Adj 18678 the initial employing Respondent Company (who had first employed the Complainant) was in UK jurisdiction Administration. ADJ-00014987 and ADJ-00018441 refer.

The UK Administrator acknowledged the correspondence (detailed letter of the 7th November 2018) but declined to attend the Hearing as in his view the underlying employment relationship had ended in April 2018, sometime well before the Administration process commenced in August 2018. No liability was admitted.

This Adjudication ADJ-00018678 is against a new Corporate Entity that purchased, on or about the 23rd October 2018, the Store where the Complainant worked until the 6th April 2018

The correct Legal Respondent thus becomes the opening issue in this Adjudication – ADJ-00018678

Is there or was there ever an Employment relationship between the parties?

1:        Opening Legal Issues  

1:1       Is the Respondent named in this Complaint the correct party to this case?

1:2       Are there time limit issues?

The Respondent in this Adjudication is a new Corporate Entity that purchased, on or about the 23rd October 2018, the Store (Dublin based) where the Complainant worked until the 6th April 2018.

This Store was a branch of a UK based Company that went into Administration in the UK on the 10th August 2018.

The Store in Dublin was sold to the Respondent on the 23rd October 2018. It no longer forms part of the UK based Administration process.

The Complainant accepted Voluntary Redundancy from the Store on the 6th April 2018 prior to both the Administration of the UK parent and the subsequent sale to the Respondent in this case.

The Complainant maintained at the Oral Hearing (31st January 2019) that she had lodged a TUPE claim to establish a relationship against the Respondent here -the transferor being the UK parent entity of the Store.

Despite an extensive search of WRC files, no record of this TUPE claim could be found.

Accordingly, as the employment ended in April 2018 and the Respondent here only took over the Business/Store in late October 2018 no employment relationship can be deemed to have existed between the parties.

1:2       Time limits

In any event a claim for TUPE associated with this claim (received on the 9th December 2018) would be out of statutory time limits for an Employment that ended on the 6th April 2018. However, an appeal could be made to have the additional six-month extension rule applied to allow the claim to be considered.

1:3       Summary

As no employment relationship has been demonstrated to exist between the parties, in this case, the case cannot proceed.

The claim must be set aside as legally not well founded.

2:        Decision:

Section 41 of the Workplace Relations Act 2015; Section 27 of the Organisation of Working Time Act, 1997 (referred to below as the OWT Act) and Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Dated:   23rd April 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee