Complainant

Respondent

Anonymised Parties

A Bar Tender

A Recruitment Agency

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-00028738-001

29/05/2019

The respondent is an employment agency and the complainant was assigned by them to work as a part-time casual bar tender at an entertainment venue in Dublin from October 2013. On July 2nd 2017, she said that she was informed by her manager that the company was going into receivership. Her manager told her that she had moved to another agency and she asked the complainant to transfer with her to work with the new company, at the same job and in the same place.

The complainant’s case is that she did not receive a statutory redundancy payment when she finished up with the first employer in July 2017.

Following the announcement about the receivership, the complainant said that she was contacted by a representative of the receiver who asked her to fill in a questionnaire.   The complainant brought a copy of this questionnaire to the hearing. This document has the title, “Claim for Statutory Entitlements Questionnaire” and the company where the complainant was employed is named on the form. The email accompanying the questionnaire states:

“As discussed, please find attached a copy of the Statutory Entitlements Questionnaire together with an employee information leaflet. I would be grateful if you could complete the form and return it to me as soon as possible so that I may process your claim with the Department of Social Protection.”

The complainant said that she filled in the form with her start and finish dates, date of birth, salary, PPS number and bank details and she sent the form to the receiver.   When her employment was terminated, the complainant was due to be paid around €400 in holiday pay and she said that she noted this on the form.

Nothing further happened but in May 2018, the complainant said that she got her P45 from the receiver.   She said she did not receive her outstanding holiday pay.

In October 2017, the complainant said that she got a new contract from the second employer that took over the staff in the bars at the venue and she has continued in employment without a break since then. It is her view however, that she is entitled to a statutory redundancy payment.   She said that her treatment by the receiver was very poor, with no communication and no response to efforts to contact them about her entitlements.

The respondent did not attend the hearing.

The Entitlement to Transfer to a New Employer

Having considered this matter, it is my view that, when the respondent company went into receivership in July 2017, the complainant transferred to a new employer under the Transfer of Undertakings Regulations. While she did not get work immediately with the new employer, the break of around eight weeks this coincided with the normal quiet season in the venue where she worked. It is my view that, if the respondent had not gone into liquidation, she may not have worked many shifts during the period from July to September 2017.

From the evidence of the complainant, it appears that the respondent’s communication and then the receiver’s communication to her was negligent and she was not advised of her entitlement to transfer to the new employer under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.   Despite this failing, it seems that her manager encouraged her to transfer and she has continued in employment.

Based on this evidence, I find that a redundancy situation did not arise, because the complainant transferred to work for a new employer, doing the same job in the same place and on the same terms and conditions that applied to her before the respondent went out of business. If she had not transferred to the second employer, her job would have been redundant and she would have been entitled to a redundancy payment.

Based on the evidence of the complainant, I have reached the conclusion that her job was not redundant and I decide therefore, that her complaint under the Redundancy Payments Act is not upheld.

Redundancy, transfer of undertakings