Complainant

Respondent

Anonymised Parties

A base controller

A taxi company

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-00019029-001

08/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00019029-002

08/05/2018

The Complainant worked for the Respondent (his brother) as a base controller in the Respondent’s taxi company.

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 – 00019029 – 001 – complaint referred under section 39 of the Redundancy Payments Act 1967

CA – 00019029 – 002 – complaint referred under section 6 of the Payment of Wages Act 1991.

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.

The following is taken from a submission submitted too the WRC by the Respondent dated 27th June 2018.

The Complainant is my brother and did work for me until 10th January 2018. He started working for me on 3rd January 2006 and not as he stated on 1st January 1998.

The Complainant worked 15 hours per week and was paid €160 gross.

The business was sold in January 2018, the Complainant, as my brother was aware of the financial situation of the company over the last year. I informed him that I could not afford to keep going with the business as it was no longer viable. I informed him that I would have to finish up in January as I could not afford to continue at a loss.

My business is now run by (name inserted). Before he took over we called a meeting with everyone and the Complainant attended this meeting with ten other people. Prior to this meeting with the new owner, I assured the Complainant that his job was safe and the new owner was happy to continue with his employment. Everyone at the meeting was told that nothing was going to change and everyone’s job would stay the same. Mark was not made redundant but decided to leave of his own accord and without giving notice.

With regard to this statement from the Complainant he was not left high and dry at any stage of the business being taken over. He was at all times told what was happening and never at any time expressed any concerns to my wife or I. Any phone calls from him requesting documents or letters for the dole were answered and he was furnished with same.

There was never a question of redundancy as the Complainant was not made redundant but chose to leave of his own accord.

The Complainant was paid his last week wages. He called to the house on 15th January 2018 to collect it.

There are areas of disagreement in this complaint that should not be present.

In relation to a start date of employment I have to accept that the date furnished by the Respondent is the correct date, the records supplied from Social Welfare Services clearly show that the Complainant between 1998 and 2006 was not in insurable employment.

What is not in dispute is that the Complainant’s employment with the Respondent ended on 10th January 2018, this is the date inserted by the Complainant in his complaint form to the WRC and is also the date inserted in his P45.

The dates of insurable employment are from 3rd January 2006 to 10th January 2018.

Employment ended on 10th January 2018 - the question to be answered is was he made redundant or did he leave of his own accord?

No matter how we look at this situation it is obvious that the complainant’s job was going to disappear when the business changed hands to the new owner. This is a redundancy situation.

The Complainant was due a redundancy payment of €4,009.60 and a payment in lieu of notice of €900.

I now order the Respondent to pay a statutory redundancy payment of €4,009.60 to the Complainant plus 6 weeks wages (€900.00) representing pay in lieu of notice.

Such sums should be paid within 42 days from the date of this decision.

As set out above

Redundancy Payments Act, 1967.