Complainant

Respondent

Anonymised Parties

An Auto Technician

An Auto Repair Business

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-00022984-001

01/11/2018

This claim for a lump sum Redundancy Payment was submitted on 1 November 2018.

The claim is taken against company A who have not made an appearance at the Hearing. The Complainant submits that he worked for company A as an Auto Technician from 10 December 2007 to the date of his dismissal of 1 January 2018. He commenced work for a new employer, Company B on 15 January 2018 in the same premises initially and undertaking the same work. He agrees that he resigned voluntarily from this company on 23 November 2018 and Is not presently at work.

Company B introduced themselves to the WRC on 11 January 2019 and submitted that the complainant’s employment had been transferred to company B in January 2018. This was disputed by the Complainant who maintained that his employment had started afresh with Company B without an overarching transfer.

On the day of hearing, Solicitor for Company B submitted that the company  be known as a Notice party in the case and disputed the claim for a lump sum redundancy payment.

The Complainant re-affirmed that he wished his claim to be answered by Company A, who were still trading. There was no appearance by or on behalf of Company A at hearing, or no defence to the claim lodged.

Both parties were requested to submit supplementary documents which were received and exchanged between the parties.

The Respondent made a Preliminary submission on locus standi.

Response to Preliminary Issue:

The Complainant presented as a Lay Litigant and made it clear that he had no intention of making a claim against Company B. He was clear that he had experienced a chaotic employment with unpaid wages, holidays and more at Company A that had never been reconciled by Company B. He attended the hearing prepared to hear a response to his claim from Company A. Prior to the hearing, he had communicated that he realise that he had insufficient service on which to claim redundancy from company B.

The Complainant submitted that his employment had ceased with Company A on 1 January 2018 following extended periods of non-payment of monies owed, an elusive employer and a two-month period of disability October-December. He indicated that he had attended work January 1 to January 15,2018 at Company A and received payments directly from accounts payable.

The Complainant exhibited a text (January 13, 2018) from the owner of Company A which confirmed that his employment was set to transfer to Company B the following Monday. The Complainant agrees that he attended for work in the same place, undertaking the same roles and receiving the same pay from January 15 forward.

However, while he understood that an official transfer of undertakings was to take place, he believed that this never happened as contracts and pay slips were not issued concurrent with the takeover. He had retained his Company A contract, but this was not available at hearing.

The Complainant displayed an unshakeable belief that his contract had been terminated on January 1, 2018 and that a gap in time separated his re start at Company B. In support of this, he submitted that he had requested a P45 from Revenue in March 2018 and this pointed to a January 1 end date. He submits that he lost out significantly at Company A and this was compounded by Company B as he was denied his rights under Information and Consultation Directive and Protection of Employees in cases of Transfer of Undertakings.

He rejected the Notice party contention that he was mistaken in his claim.

Substantive case:

The Complainant gave an outline of his substantive case. He submitted that he was entitled to a statutory lump sum redundancy payment in respect of his continuous employment with Company A from 10 December 2007 to January 1, 2018 when he believed that the owner of company A abandoned his business and the significant debt owed to him. He had been dismissed and not replaced. He had pursued the Owner of Compony A for this debt, but it had been fruitless. He had submitted an RP 77 form claiming redundancy in October 2018.

The Complainant submitted that the period December 2007 – November 2018 must be catalogued into two separate and distinct periods of employment.

Company A December 2007 – January 1, 2018 (October to December 2017 sick leave)

Company B January 15 -November 23, 2018

It is from the first employment that the instant claim arises. He disputed that he had continuity of employment with company B as the P45 dated January 1, 2018 was tangible proof of termination of employment. He expressed a grave disappointment that Company A had let him down by not covering his payments to revenue and Company B had assumed ownership of a workforce without any consensus.

While the Owner of Company B had confirmed that he had taken over the business, the complainant submitted that this had not been prefaced with any of the ceremonies or documentation which generally accompany a Transfer. Namely, he was not provided with a contract of employment or even a letter confirming this take over. He felt security was promised but not delivered on.

This upset him as he went on to obtain a reference on leaving company B only to receive confirmation of months of work rather than years. This was an impediment to his securing further work. He submitted that this insecurity in his position served to postpone his intended resignation from Company B.

The Complainant considered the terms of Section 7(2) of the Act and submitted that his circumstances came in under Section 7(2) (c)

The Complainant indicated that he had first claimed Unfair Dismissal and minimum notice against Company A, but this had not progressed. He recalled telling the Owner of Company B of his ongoing difficulties with the owner of company A. He told the hearing that he had not received any holidays for over 10 years and this had never been addressed on the takeover of the business. He confirmed that Company B had honoured all his terms of employment post January 15, 2018 but he left because of Cultural changes rather than fundamental employment changes.

He submitted that he had not actually received pay slips until October 2018 when they arrived in abundance and were backdated. The complainant submitted details of 2017 pay slips at hearing.

The complainant agreed to submit his contract of employment with company A along with P45, P60.

The Complainant did not submit a contract of employment, but submitted a p45, p60 and pay slips covering 2007. These were copied to the Notice party.

There was no appearance by or on behalf of Company A or any response filed to the claim.

Preliminary Issue:

The Notice Party Solicitor set the scene that Company B had taken over an aspect of Company A on 15 January 2018 by way of Transfer of Undertakings. This covered the workshop where the complainant and one other employee were based. Company A and B amalgamated, and all roles continued as before. Company A is now a dormant company and the owner is resident abroad. There were two employees at the business and payments were made to the complainant as before the takeover. The transfer was not captured in any documentation or formal agreement outside a purchase agreement and it was the Notice party’s contention that TUPE had occurred by operation of law

The first pay slip issued from Company B dated 19 January 2018 and incorporated January 15 onwards. The pay slips were presented on a cumulative basis in October 2018.

The Notice party sought that the case should be dismissed, given that it is not the named respondent.

This had followed a very challenging lead in period where the Owner of Company A operated his business in an unusual manner and simply was not available to Company B. In response to the Adjudicators request for evidential documentation that a Transfer of Undertakings had passed between Company A and B. I received a without prejudice record of transfer of business corresponding to the dates already submitted.

Substantive Case:

The Notice party took issue with the claim as the complainant had worked continuously with Company B since January 15 and left of his own accord in November 2018. The Notice party submitted that a Redundancy situation had never prevailed and instead the complainant had transferred over to Company B as indicated in the Company A owner’s text to the complainant dated January 13, 2018.This had protected his employment and he had not been dismissed.

The Notice party sought that the case be dismissed as the Complainant had brought proceedings against the incorrect party. In any event, Company B pointed to the complainant’s voluntary resignation from 23 November and this automatically disqualified him from a claim for Redundancy. Company B has replaced the complainant following a protracted search.

The Respondent submitted that issues which had arisen on issues of holidays/wages unpaid had not been raised when the employment transferred and were now out of time.

I have given this case some thought. It was the stated intention of the Complainant on complaint form dated November 1, 2018 to pursue Company A for payment of a statutory lump sum in redundancy. The case was first listed for hearing on January 23, 2019.

On January 11, 2019 the Solicitor for Company B explained that the company was on notice of the complaint and sought an adjournment due to a double booking. Same was granted. On 18 January 2019, the complainant, in referring to company B as a “third party “re-affirmed that his claim was lodged against company A and not company B. He disputed that a TUPE situation had prevailed.

There has been no appearance or response from Company A.

Company B arrived to hearing seeking to be permitted to absent themselves from the claim. Company B went on to make a preliminary and substantive argument in the case. I have given this matter a lot of thought as the Company B prompted their own attendance at hearing without invitation. In the unexplained absence of company, A, I needed to probe this carefully.

The Complainant expressed a complete loss of faith in company A who he maintained owed him a major amount of money from omissions to pay him, grant annual leave and other outstanding matters. He had not advanced his case under TUPE legislation but held a deep conviction that he had been wronged by company B. I noted that his letter of resignation from Company B dated 9 November 2018, 8 days post submission of the instant claim, wished the company every success going forward. There was some inconsistency here.

I am back to who is the correct respondent in the case and I must conclude that Company A must be recognised as the correctly identified employer in this case and I have retained Company B as a notice party and amended the decision accordingly.

For a redundancy claim to succeed it must be prefaced by a dismissal, actual or constructive. An employment must end. The Complainant submitted that his employment at company A ended by dismissal as evidenced on the P45 secured in March 2018. However, on probing this point, I established that the complainant was present in the Company a workplace during the first two weeks of January 2018. He confirmed that he had self-paid for this period from the “accounts payable section of the company”. He did not submit documentary evidence of this, but I understood what he meant.

This was then followed by a text from the owner of company A that he was transferring the business to new ownership. The text was not supported by specific dates. At hearing the Notice party presented a commercial document which they determined as commercially sensitive. This document confirmed that the workshop where the complainant was based was acquired through a commercial transaction dated January 15, 2018. It was silent on a reference to TUPE.

It is of cardinal importance to the facts of this case, that the complainant commenced on Company B payroll from January 15 onwards. I accept that he did not have the benefit of pay slips until much later, but he did not dispute that he continued working in the same place in the same way until he left at the end of November due to cultural differences.

I accept the complainant’s evidence that he was not participant in any introductory, information or consultation exercise which pre-dated his commencement on company B pay roll. I believe this omission to be utterly insensitive and so far, short of best practice to be completely unacceptable. Employees on transfer have a right derived from the EU from SI.131/2003, Protection of Employees on Transfer of Undertakings to several respectful protections. An ambiguous text from an errant employer did not addresses those responsibilities. Equally, an acquisition of a business through commercial transaction should have prompted an inquiry by the prospective owner through the Due diligence process, on his obligations to long serving staff who were clearly already troubled by an absentee employer. The Complainant deserved to be addressed and heard rather than taking his cooperation for granted. This was regrettable for both parties.

The complainant has rested the core of his case on the P45 being a determinant of his dismissal from Company A. He maintained that this automatically triggered an entitlement to redundancy.

I cannot accept this to be the case as by his own admission he continued working at the premises on a continuous basis covering the two first trading weeks of the new year and paid himself from Company A funds. This demonstrated a continuity of employment into January 2018, albeit there were no pay slips available for this period. I appreciate that the complainant had been on absence through illness for an extended period up to Christmas week of 2017. I accept that there was a myriad of issues unresolved by Company A.

However, I have been asked to decide on whether the complainant is entitled to receive a statutory redundancy payment in accordance with Section 7(2) (c) of the Act.

Section 7(2):

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

( a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The complainant submitted that he claimed the statutory payment under Section 7(2) (c) of the Act. He confirmed at hearing that both employees continued to work with Company B post January 15, 2018. His P45 with Company B reflects this as do his latter day pay slips.

He confirmed that he had retained a contract from Company A but has not submitted it for the purposes of this case to date. While I can appreciate that the owner of Company A ceased to operate this aspect of his business from January 2018 onwards. I find that he did so through a poorly conducted transfer of undertakings which negated a redundancy situation in practice.

Of course, it was unhelpful that both company A and B were found so heavily wanting on adherence to the clear procedural framework of transfer under TUPE, nonetheless, I have found that a transfer of undertakings occurred on January 15 by operation of law and I cannot establish that the complainant was dismissed at that time.

All the oral evidence, supports a continuity of employment, however poorly orchestrated in practice. I accept that the complainant did not observe the weaving of the threads of TUPE, however, as stated in my opinion ,TUPE occurred through operation of law.

I note that Company B reflected the complainants service as originating solely at Company B on his reference at the end of employment, Given the submissions on continuity made by the notice party at hearing, this was an error and should be amended immediately.

Therefore, the complainant has not made out his case that he was dismissed through redundancy as he continued in the same position in the same location until his voluntary resignation several weeks post submission of this claim.

I must find that the claim against Company A is not well founded. I must also conclude that Company B, while a notice party is not the correctly identified as a respondent.

There is, however, in my opinion a defined opportunity for learning for both Company A and Company B in this case. It is important to remember that a business is often made up of employees who have committed to the success of a company and may even have “made do “in the bad times. They ought not to be overlooked in the face of any subsequent acquisition and they deserve information, consultation and engagement.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the claim for a lump sum payment in redundancy Is not well founded against Company A and Company B, as notice party is not the correctly identified respondent

Claim for a Lump sum Redundancy Payment