ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00013885
Parties:
| Complainant | Respondent |
Anonymised Parties | Head Chef | Food/Beverage Service Provider |
Representatives | Claimant | The respondent did not attend and was not represented at the hearing |
Complaint(s):
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-00018196-001 | 28/03/2018 |
Date of Adjudication Hearing: 29/08/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 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).
Summary of Complainant’s Case:
The claimant was employed as Head Chef with the respondent from the 22ndJan.2014 to the 2nd.October 2017. She submitted the respondent was in breach of the Act for failing to pay her her statutory redundancy. The claimant stated that she had no contract of employment and that she and her colleagues had been advised by the respondent that she would be entitled to redundancy. She suggested that it later transpired that the respondent was trying to get her to leave to avoid paying redundancy. The respondent’s business closed on the 30h.Sept and she then commenced as the new franchisee on the 2nd.October 2017. The claimant stated that she had no option but to apply for the franchise as she was facing the loss of her job. The claimant stated that she had been advised by her solicitor that in light of the new contract applying a transfer of undertaking did not arise. She stated that existing lights and fittings belonged to the Golf Club and that some stock had been left over; the club purchased the stock from the respondent and sold it to the claimant. |
Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing. In a pre hearing submission the respondent’s representative contended that TUPE applied to the transfer of the business and that as the employees continued in the employment of the new franchisee, redundancy did not arise. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
I have reviewed the evidence presented and have concluded that the transfer of the business meets the definition of a transfer of undertaking under Regulation 3 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, that the business continued to operate and consequently redundancy does not arise. Accordingly , I find against the claimant and do not uphold the complaint. |
Dated: 14th February 2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea