Complainant

Respondent

Anonymised Parties

A base controller

A hackney cab company

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-00019032-001

08/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00019032-002

08/05/2018

The Complainant worked for the Respondent (his brother) as a base controller in the Respondent’s taxi company. This taxi company was acquired by the Respondent on 12th January 2018.

There is a significant level of disagreement between the parties in relation to a start date and the number of hours worked each week by the Complainant.

This complaint was received by the Workplace Relations Commission on 08th May 2018.

The file contains two complaints, these are as follows:

CA – 00019032 – 001 – complaint referred under Regulation 10 of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003)

CA – 00019029 – 002 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

The Complainant has used one submission for both complaints, the summary of the case for both complaints is as follows:

The claim by the Respondent that the complainant left his employment of his own accord is utterly false and entirely lacks credibility. If the employment ended prior to the transfer then it was by the action and / or failures of the Respondent and was a device to suit the Respondent’s purpose of selling the business. The claims are that the Complainant was entitled to statutory redundancy payment and statutory notice.

Or

The Complainant’s employment automatically transferred to the Transferee who refused to honour the responsibility to continue the Complainant’s employment. The claims are that by refusing to continue the employment the Transferee effectively dismissed the Complainant without just cause plus the various breaches of TUPE regulations that apply to both Transferor and Transferee – the Transferor breaches transfer to the Transferee on the date of transfer.

The Adjudicator will have to decide which option applies, when he hears the evidence of the Respondents. The dearth of information meant that the Complainant was not in a position to decide exactly what happened - other than that he had lost his job in a most unpleasant and unjustified manner.

By letter dated 29th June 2018 the legal representative informed the WRC that his client, the Respondent had acquired a business on 12th January 2018 which is now trading under a different name.

This letter goes onto state that the client (the Respondent) understood from the owner of the acquired company that the Complainant no longer worked with the cab company and indeed he had provided a letter to the Complainant on 10th January 2018 stating that the Complainant had ceased employment.

Clearly when the Complainant was not an employee when the Respondent took over the running of the business the Respondent has no case to answer.

The Complainant’s employment ended on 10th January 2018.

The employer on 10th January 2018 was not the Respondent in this complaint.

The Respondent in this complaint acquired the business on 12th January 2018.

It is not possible to dismiss an employee if such employee was never employed.

The Complaint CA – 00019032 – 002 referred under section 8 of the Unfair Dismissals Act, 1977 is not well founded and therefore fails.

CA – 00019032 – 001 – complaint referred under Regulation 10 of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003)

In Celtec Ltd v Astley and Others (Case C – 478/03 [2005]) the European Court of Justice held that article 3 of Directive 77/187 must be interpreted as meaning that the date of a transfer within the meaning of that provision is the date on which responsibility as employer for carrying on the business of the unit transferred moves from the transferor to the transferee. That date is a particular point in time which cannot be postponed to another date at the will of the transferor or transferee. For the purposes of applying that provision, contracts of employment or employment relationships existing on the date of the transfer between the transferor and the workers assigned to the undertaking transferred are deemed to be handed over, on that date, from the transferor to the transferee, regardless what has been agreed between the parties in that respect.

Using this case as an authority the particular point in time was 12th January 2018, on this date the Complainant was not an employee of either the transferor or the transferee.

The complaint referred under Regulation 10 of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003) is not well founded and therefore fails.

As outlined above.

Unfair Dismissals Act; TUPE.