Complainant

Respondent

Anonymised Parties

Sales Representative

Tiles and Paint Retailer

Representatives

Mary McGregor Mary McGregor Solicitor

Mary Jayne McFerran Peninsula Group Limited

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-00010800-001

12/04/2017

The claimant submitted that he was employed as Sales Manager with the respondent from the 7th.Feb.1989 to the 29th.October 2016.He submitted the respondent was in breach of the Act as he did not receive “ any redundancy payment”.The claimant’s representative asserted that no transfer of undertaking took place ; that none of the statutory requirements had been complied with and that the meeting that allegedly took place in July 2016 never happened.She submitted that as there was no transfer of undertaking , the respondent’s arguments were not relevant.

In his direct evidence the claimant set out details of his employment history – he asserted that he was promoted to Sales Manager and that he was reduced from 5 days a week to 3 days a week in 2010.He denied that any meeting took place with the employer in July 2016 and said he was never told when the new company was set up.On the 1st.Oct.2016 he got a text at 8.15 am notifying him of a meeting on the 3rd.October at 6.00p.m. He asked at the meeting if his 27 years service would stand and was told it would be recognised .He asserted he was given no correspondence about the changeover or its legal implications - there was no union in the company.They were advised the Company had been set up from August and that nothing would change.He was issued with a contract on the 29th.Oct at 5.25p.m. and found his hours were reduced from 24 – 16 hours and new 4 hour shifts were introduced.He submitted that he had no previous written contract of employment.At this time , the claimant had his holidays booked and he did not sign the contract for the new company .The claimant never received documentation about a TUPE agreement .The claimant attended his GP on the 1st.November and was put off sick with hypertension. He was paid for 16 hours .He did not return to work and his representative wrote seeking the payment of redundancy.The claimant said that when the transfer took place he did not work for the new company as he had been assured nothing would change .He stated that the was still being paid by the old company – this was contested by the respondent who submitted payslips in the name of the new company from September 2016.Since the last hearing the claimant’s representative submitted a series of pay slips from the claimant in the name of the old company which supported the cliamant’s contention that he continued to be paid by the old company .It was submitted by his representative that the respondent had in fact altered the payslips to refer to the new company .The claimant asserted that the conditions of the new contract were completely different to established custom and practise in terms of the number of hours , the 4 hour shift and the requirement to travel for shift work.The claimant submitted that TUPE had never been mentioned to him and he had been provided with no legal explanation for the changeover.He submitted that he was entitled to claim redundancy given the less favourable conditions attaching to the new contract.

The respondent denied there was any breach of the Act and submitted that all staff members were invited to a meeting regarding a change of ownership in the business in July 2016 from Mr.JVS to his son Mr.JS.It was submitted that change of ownership also involved a transfer of the business from BTCLtd. To BAT&P Limited .The transfer of staff , data bases goodwill etc took place on the 1st.Sept. 2016 with no break in service.It was submitted that Mr.JS confirmed to the staff at a meeting on the 5th.Sept. and in response to an enquiry from the claimant that all years of service carried over to the new company.Mr.JS met the claimant on the 21st.Sept. 2016 advising him that as and from the 1st.Nov. 2016 his hours would be reduced from 24 to 16 per week.A draft contarct was issued to the claimant on the 26th.October and Mr.JS advised the claimant’s rep on the 21st.Nov. that a TUPE transfer had taken place and “ as a result all of his tenure and terms and conditions of employment would be protected”.On the 14th.Dec. 2016 , the claimant’s rep advised the respondent that their client would not be taking up a position with BAT&P Ltd.   And that the claimant was requesting a redundancy payment.Mr.JS replied that as the claimant had transferred to the new company , any termination of employment would constitute a resignation and not a redundancy.It was submitted that in this response Mr.JS confirmed that the claimant would remain working 24 hours per week.

The respondent invoked the provisions of Spijkers v Gebroeders Benedik Abbatoir CV[1986} to support their contention that a transfer of undertaking had taken place .The provisions of Symantec Ltd. -v-Declan Leddy   and Diarmuid Lyons [2009]IEHC 256 to support their contention that the claimant was not entitled to claim redundancy .Additionally , reference was made to EAT determination Ryan -v- &H Slattery (RP 327/2006) where it was found that as the business was sold as a going concern to a purchaser along with its stock , there was a transfer of undertaking and no liability on the transferor to make a redundancy payment.It was submitted that the case law relied upon demonstrated that the claimant’s refusal to transfer cannot prompt a redundancy situation.

In his direct evidence Mr.JVS confirmed that the company was insolvent and he was standing down owing to health challenges.He accepted the claimant was not advised of the exact date of the transfer , that staff were not met individually .When it was put to him that the claimant was never given an opportunity to object , he submitted that the claimant could have objected if he wanted to .Mr.JS set out the background to his taking over the company ; he said his father asked him to convene a meeting on the 3rd.July 2016 to appraise staff of the transfer and he submitted that the transfer took place on the 1st.Sept. 2016.He asserted that the provisions in the new contract presented to the claimant were not directly targeted at the claimant and were to allow for flexibility and cover if someone was off.He advised that after a meeting on the 3rd.October , he called the claimant in and told him that from the 1st.Nov.2016 he was going to be cut to 2 days per week.The claimant asserted he could not afford same .Mr.JS replied that he would try and reinstate the hours in March/April 2017.Mr.JS asserted that the claimant never actually worked a 16 hour week .Mr.JS contended that the claimant indicated he would have to leave the company if his hours were cut and in response he decided to reinstate the claimant on 24 hours as he didn’t want to loose him.Mr.JS asserted that he manually recorded the meeting on the 3rd.July 2016 and undertook to furnish the WRC with the original notes of the meeting.Mr.JS stated that he reversed to proposal to reduce the claimant’s hours as he could not afford to loose him.He had never intended making the claimant redundant.Mr.JS disputed that the claimant was a Sales Manager – he stated that the claimant was replaced by another worker in March 2017 on 24 hours per week.He advised that a meeting took place with the staff on the 3rd.October 2017 , that the meeting was very informal and he informed staff that if they had any issues he could speak with them directly.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.I have taken account of the fact that despite the undertakings given at the most recent hearing to furnish the WRC with the original minutes of the meeting that took place with staff on the 3rd.July 2016 , no such documentation has been furnished and no explanation for failing to submit same has been offered.The claimant categorically denied that any such meeting took place.I further note that the payslips submitted by the claimant post the hearing undermines the respondent’s credibility with respect to which company paid the claimant following the alleged transfer of undertaking. Additionally , I have clarified with the CRO that the respondent company BTC Ltd. remains registered with them and that the alleged transferee BAT&PLtd. was registered with the CRO on the 4th.July 2016 – the day following the disputed meeting .I note that the respondent asserted in their written submission to the WRC that the transfer of undertaking took place on the 5th.Sept. 2016. I further note that the cliamant’s payment for November 2016 was in respect of a 16 hour week.In light of the foregoing chronology and the inconsistencies in the respondent’s submissions I must conclude that no transfer of undertaking took place as has been asserted by the claimant’s representative. I find that the respondent effectively repudiated the contract of employment and accept the claimant was entitled to resign on foot of his contention that the conditions of the new contract were completely different to established custom and practise in terms of the number of hours , the 4 hour shift and the requirement to travel for shift work and that they were inferior to the terms the claimant previously enjoyed.In all of the circumstances therefore I find that the claimant is entitled to rely on the provisions of Section 9(1)(c) of the Redundancy Payments Act 1967 which provides that an employee shall be taken to be dismissed by his employer …………………..”the employee terminates the contract under which he is employed by the employer […]in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer’s conduct”.Accordingly , I am upholding the complaint under the Redundancy Payments Acts 1967-2012 and find that the claimant is entitled to a redundancy payment based on the following criteria :

Date of Commencement :7.02.1989

Date of Termination :       3.11.2016

Gross Weekly Pay :           €271.98 per week

This award is made subject to the claimant having been in insurable employment under the Social Welfare Acts during the relevant period.