RPD2010

1.An Appeal of an Adjudication Officer's Decision No(s)ADJ-00012809 CA-00016896-011

BACKGROUND:

2.Both parties appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place in a virtual setting on 12 November 2020.
The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Martina Lynch (Complainant) and cross appeal by Bidvest Noonan (Respondent) against an Adjudication Officer’s Decision given under the Redundancy Payments Act 1967(the Act). The Adjudication Officer held that the claim by the Complainant for redundancy under the Act was well founded.

Background

The Complainant commenced work in September 2014 with the Respondent and her last day working for the Respondent was 24^thAugust 2017. It is the Complainant’s submission that either she was transferred to another organisation in which case the Respondent had not complied with the requirements of Regulations 4 and 8 of S.I.131 of 2003 or she was made redundant. It is the Respondent’s submission that the complainant and her colleagues were transferred by operation of the Transfer of Undertakings Regulations to a named company.

This case is linked to case TUD203 where the Court determined that no transfer of an entity as defined by the Transfer of Undertakings Regulations occurred.

Complainants Case

It is the Complainants submission that her last day of work was the 24^thAugust 2017. With effect from the 1^stSeptember 2017 the Respondent did not have any work for her in Kerry University Hospital where she had been based since the commencement of her contract and was not in a position to offer her work in another location. It is her submission therefore, that she is entitled to a redundancy payment.

Respondent’s Case

It is the Respondent’s submission that that the Complainant was not made redundant within the definitions set out in the Act that in fact she was transferred to another body.

The Applicable Law

Section 7(1) of the Act outlines the general right to redundancy pay. It states: -

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or, had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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, or 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.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(5) In this section “requisite period” means a period of 208 weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Discussion and Decision

The Court in linked decision TUD203 has already determined that a transfer of undertakings did not occur in this case. It is not disputed between the parties that with effect from the 1^stSeptember 2017, the Respondent ceased to provide Health Care Assistants to the Kerry University Hospital. The sole reason for the recruitment of the Complainant and her colleagues as set out in the linked case was to provide Health care Assistants to the Hospital. Section 7 (2) (a) of the Act, provides that a dismissal may be by way of redundancy if the employer has ceased to carry on the business for which the employees were employed. It is clear from the facts of this case that is what occurred and that the termination of the employment constituted a redundancy.

The Court determines that the termination of the employment constituted a redundancy that qualifies the Complainant to receive a redundancy payment within the meaning of the Act. The decision of the Adjudication Officer is upheld.

The Court so Determines

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
11 December 2020	Deputy Chairman