Complainant

Respondent

Anonymised Parties

Chef

Restaurant

Representatives

  Self

 No attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034072-001

28/01/2020

The Complainant was employed by the Respondent from 23.02.2018 until 27.09.2019. His rate of pay at the end of the employment relationship was €451.93 gross. The Complaint is in respect of holiday pay for annual leave which the complainant after the end of the employment relationship-in or around Christmas 2019 and January 2020. By that time the operation of the café/restaurant had transferred to new owners.

The WRC issued notice of the complaint and the hearing to the Respondent at the address provided by the Complainant. Unsuccessful  efforts were made to contact the Respondent at the telephone number provided. I am satisfied that every reasonable effort was made by the Workplace Relations Commission to notify the Respondent of the complaint and the hearing and on this basis, I proceeded to hear the complaint, taking the evidence of the Complainant and the relevant legislation into account.

The Complainant was provided with two statements of terms of employment, one at the commencement of his employment and another prior to the transfer of ownership of the business in 2019. He could not recall what the second document said, if anything, regarding his conditions of employment following the transfer. He recalls the new employer saying post the transfer that they(named at the hearing) were liable for any holidays carried forward. However, when he and others in the same position took their holidays at Christmas and New year 2019/20,they found they were paid for annual leave only for the hours they had worked with the new employer. He was told that the Respondent was responsible for any holidays accrued during their employment with him. The Respondent offered to ay some of the money owed, but the Complainant refused to accept the payment offered as it fell short of the amount owed. He then referred the complaint to the WRC on January 20, 2020.

The Respondent did not attend and was not represented at the hearing.

Having heard the evidence of a transfer of the business of a café/restaurant operating on the same premises from the Respondent to another operator/business owner as a stable economic entity, I am satisfied that this was a transfer of undertakings from the Respondent to another party, with whom the Complainant is still employed. As part of a transfer of an undertaking between those two parties, the Complainants rights and the Transferees obligations in relation to accrued annual leave on completion of that transfer are comprehended by the terms of what is known for short hand as the TUPE Regulations. The Respondent is the transferor for the purposes of that legislation.

Section 4(1) of S.I.131/2003 applies:

‘The transferors rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer ,be transferred to the transferee.’

In the absence of any evidence from the Respondent and the absence of any documentation between the Complainant and the employer with whom he is now employed, there is no basis for concluding that the Respondent was insolvent or bankrupt and thus that a transfer of undertakings might not have occurred.

Based on these conclusions, the liability of the Respondent to pay for annual leave accrued by the Complainant during their employment relationship passed from the Respondent to the transferee employer and the complaint against the Respondent is not well-founded.

Organisation of Working Time Act,1997

The complaint brought by the Complainant against the Respondent for non-payment for accrued annual leave under this Act, is not well-founded.

OWT/TUPE.