Complainant

Respondent

Anonymised Parties

Waitress

Restaurant

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-00025202-001

23/01/2019

The Complainant is a waitress.

The Respondent was the owner of a steakhouse restaurant.

The parties were aware of the European Communities (Protection of Employees and Transfer of Undertakings) Regulations 2003.

The Complainant was originally employed in a steakhouse restaurant under a sole trader in February 2009.

On the 14th of August 2017 she was informed by that sole trader that she changed the status of the business for tax purposes to a limited liability company. The sole trader advised the Complainant that this change would not affect her employment. She was issued with a P45.

The Respondent issued her with a new contract of employment. It was dated 14th August 2017.

The Complainant submitted that she continued her employment at the same place with the same terms and conditions. She worked 5 hours a week.

In November 2018 the Complainant was advised that the restaurant was taken over by the landlord of the premises.  

The Complainant confirmed that she is still working the same hours and on the same pay under the new owner. She said that, other than the landlord now being involved, everything has continued as was under the Respondent and nothing had changed. The restaurant continued in the same premises with the same fixtures, fittings, tableware, staff, customers.

The Accountant for Respondent made several submissions in relation to breaks in service and the liability for the payment of any redundancy payment due.

She provided a number of tax documents relevant to the Complainant’s service.

The Respondent was a separate legal entity to the previous owner who was a sole trader and the current employer of the Complainant who was the landlord of the restaurant premises.

I have considered the evidence of both parties.

Having heard the evidence of both parties as to the transfer of the business to the Respondent in August 2017 and the Landlord in November 2018, I find that an economic entity as operated by the original sole trader and subsequently the Respondent did retain its identity upon the transfers.

Accordingly, I am satisfied that there was transfer of undertakings on two occasions in August 2017 and November 2018, thereby entitling the Complainant, pursuant to Regulation 4(1) of the Regulations, to transfer to the employment of the third party (Landlord) on no less favourable terms and condition of employment as compared to that which applied when in the employment of the Respondent.

For the avoidance of any doubt, as a matter of law, the Complainant is entitled to have her full continuous service from 2009 recognised by the Landlord employer.

On the basis of the foregoing and by operation of law, the Complainant’s employment transferred on no less favourable terms and conditions of employment on to the new owners (the Landlord). In those circumstances a termination of employment does not arise and consequently the Complainant has no entitlement to a statutory redundancy payment.

The complaint is not well-founded.

Redundancy.