ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00018308

Parties:

	Complainant	Respondent
Anonymised Parties	A Butcher	A Butcher Shop

Complaint(s):

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-00023482-001	23/11/2018
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-00023482-003	23/11/2018
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-00023482-004	23/11/2018
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-00023482-006	23/11/2018
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-00023482-007	23/11/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00023482-008	23/11/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00023482-009	23/11/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023482-010	23/11/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00023482-011	23/11/2018

Date of Adjudication Hearing: 20/02/2019

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant is a butcher. The Respondent is a Butcher Shop owner. The parties disagree on the date the Complainant started working for the Respondent and when his employment was terminated. The Complainant was paid €500.00 gross per week. A complaint was lodged with the WRC on 23 November 2018.

The Complainant has lodged nine complaints against this Respondent and another two complaints against another Respondent which are linked (see ADJ-18301). The Complainant's contends that he was transferred from this Respondent to the Respondent named in the other two complaints with no regard for the obligations placed on employers under the Transfer of Undertakings Regulations.

The Summaries below are common to all the Complaints which are dealt with further in this Decision.

Summary of Complainant’s Case:

The Complainant submits that he commenced work in August 2010 with the Respondent as a butcher in Shop A.

In 2014 he was moved to another location, Shop B. He submits that it appears that throughout his employment he was employed by a number of various companies. He was not aware of the change of the employer otherwise by the name of the employer on the P60.

On July 17th 2018, Shop B was closed and he was transferred back to Shop A. The Complainant submits that there appeared to be a transfer of undertaking to another company at the time. He received new terms and conditions of employment from the new employer on the 16th of August 2018. The date of commencement on that contract was the 19th of July 2018. The Complainant submits that he worked at all times with the same people and under the direction of the same people. Around this time he started to ask about outstanding annual leave entitlements and was told that someone else was responsible for the outstanding wages redundancy and annual leave. This has not been cleared since.

The Complainant submits that following a conversation in July 2018, the Respondent stopped taking his calls and another of the management took over but refused to engage with him on the subject.

The Complainant submits that his hours were reduced to approximately 17 hours in the week commencing the 27th of August 2018, 10 hours in the week commencing the 3rd of September 2018, and zero hours in the week starting 10th of September 2018. The Complainant was on annual leave from the 14^th September 2018. On his return from holidays he worked the 19^th and 20^th of September 2018. He had another conversation with his manager about his outstanding pay and entitlements and following this he was not put on the roster for the following week.

The Complainant contends that his employment and entitlements should have transferred with him to the other Respondent. At no point was he informed about a transfer of undertaking. To date he has not been paid his entitlements.

Summary of Respondent’s Case:

The Respondent submits that the Complainant commenced employment with another entity, Company 1, in August 2010 until 1^st February 2014, in Shop A. In 2014, due to a falloff in business the Complainant's hours were cut.

Later in 2014, the Respondent offered the Complainant a position in his butcher shop, Shop B. The Respondent submits, that the Complainant resigned from his employment with the owner of Shop A and took up employment with the Respondent in Shop B. At no stage was there any mention of a Transfer of Undertakings.

The Respondent submits that there was no cross over of staff between his company and Company 1.

The Respondent submits that it ceased trading abruptly in July 2018. Around this time the Complainant was offered a part-time, temporary position with the owner of Shop A, who had opened a new business since the demise of Company 1. The position was offered to the Complainant on a temporary basis to cover the annual leave period.

The Respondent submits that there was no Transfer of Undertaking in this change and that the Complainant's employment had ended on 17^th July 2018, when the Respondent Company ceased trading.

Findings and Conclusions:

Having considered this matter carefully I find the following.

The Complainant's employment with the Respondent commenced on 2^nd February 2014 and ceased on 17^th July 2018, as per the P45s adduced in evidence by the Respondent. The period from 17^th July 2018 until 14^th September 2018 was with another entity, not with the Respondent. No evidence was adduced to indicate that there had been any Transfer of Undertakings. Therefore, I find there was no Transfer of Undertakings between these two entities.

CA-00023482-001 Complaint under the Transfer of Undertakings Regulations, 2003.

Findings

I find no Transfer of Undertakings took place.

Decision

Decision

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complaint is not well founded.

CA-00023482-009 Complaint under the Redundancy Payments Act, 1967.

Findings

I find a redundancy did take place and that the Complainant did not receive any redundancy payment from his employer.

Decision

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

Accordingly, the claim under the Redundancy Payments Acts 1967 to 2007 is allowed and the Complainant is awarded a statutory lump sum under those Acts, and based on the following:

Date of Commencement; 2^nd February 2014

Date of Termination; 17^th July 2018

Gross weekly pay; €500.00

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

CA-00023482-010 Complaint under the Organisation of Working Time Act, 1997.

Findings

The Respondent agreed with the Complainant's contention that he was owed two weeks' holiday pay, equal to €1,000.

Decision

The complaint is well founded. The Respondent to pay the Complainant €1,000 in lieu of his outstanding holiday pay.

CA-00023482-011 Complaint under the Payment of Wages Act, 1991.

Findings

The Respondent agreed with the Complainant's contention that he is owed two weeks' pay, equal to €1,000.

Decision

The complaint is well founded. The Respondent is ordered to pay the Complainant €1,000, in lieu of his two weeks' wages.

Dated: 30^th May 2019

Workplace Relations Commission Adjudication Officer: Roger McGrath

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