Complainant

Respondent

Anonymised Parties

Waitress/ Barista

Restaurant Franchisee

Representatives

  The claimant represented herself

 The respondent represented himself

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-00036024-001

06/05/2020

The claimant was employed as a waitress by the respondent from the 11th.November 2019 – 22nd. March 2020. The claimant had been previously employed by another franchisee from the 29.09.2019 and carried forward outstanding leave of 117.97 hours when the transfer of the business took place on the 11th.November 2019. She was aggrieved that the outstanding leave was never paid by the respondent when the claimant resigned from employment on the 22nd.March 2019.

The claimant submitted that she commenced employment with the former franchisee on the 29th.Sept. 2017 and continued working there after the franchise was taken over by the respondent on the 11th.November 2019 .The former owner Mr.X wrote to the staff on the 5th.Nov. 2019 advising that the new franchisee Mr.Y would be taking over with effect from the 11th.Nov. 2019  and stating that “ all holidays worked up with us will be transferred over “ to Mr.Y In an email from Mr.Y dated the 29th.Jan.2020 , it was confirmed to the claimant that her outstanding holidays stood at 117.97 hours.

The claimant tendered her resignation on the 9th.March 2020 and the 22nd.March 2020 was her last working day. Thereafter the claimant made contact with the respondent and emailed him about payment of her outstanding holidays of 117.97 hours, but no payment was forthcoming.

The respondent (Mr.Y) stated at the hearing  that the company had been registered , was on hold and that he would forward the CRO  registration number to the WRC .Mr.Y acknowledged that the claimant had worked for the former franchisee( Mr.X) for 3 years  and further acknowledged that she was owed the 117.97 hours but insisted they  were owed to her by Mr.X and not by him. He stated that he would submit evidence of having paid the claimant for holidays accrued while he was the franchisee and insisted, he had met all of his obligations. He stated that Mr.X took the business back from him at the start of the first lockdown in March 2020 and that Mr.X reopened the café later in 2020 when the restrictions were lifted. He asserted that Mr.X took back all of the staff that had been laid off with the exception of the claimant who had resigned. Mr.Y stated that Mr.X had paid all outstanding holidays to the other staff . Mr.Y stated that he forwarded the claimant’s emails to Mr.X and submitted that he had paid all outstanding leave accrued while he ran the business.     Mr Y said he was attending the hearing in an effort to assist the claimant in recovering the holiday pay from Mr.X but he was adamant that the responsibility for paying the outstanding holidays rested with Mr.X and not with him.

I have reviewed the evidence presented at the hearing and the documentation submitted by the parties. Subsequent to the hearing the respondent Mr.Y submitted pay slips in support of his contention that he had paid the claimant for the leave she had accrued while employed by him. He also furnished the CRO Certificate of Incorporation  confirming that the café was incorporated under the Companies Act 2014  on the 20.11.2019  and that the company is a “Private Company Limited by Shares “.

The next matter to be determined is whether the transfer of the business to the respondent in November 2019 constituted a Transfer of Undertaking. On the basis of the evidence presented by both parties and the documentation submitted I am satisfied that the transfer meets the tests set out by the ECJ in Spijkers (1986) with respect to the undertaking being a stable undertaking with an ongoing life of its own; the entity retaining its identity, the taking over of staff by Mr.Y; the transfer of the customer base; the continuation of similar activities without interruption and the transfer of assets .

Regulation 4 of the E.C. (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides that “The transferor’s 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 instant case , the claimant was in the employment of the respondent from the 11th.November 2019 and submitted her resignation to the respondent on the 9th.March 2020. Consequently , the liabilities regarding the outstanding entitlement to holiday pay transferred to Mr.Y , the transferee.

I find the complaint against the respondent is well founded and uphold the complaint. I require the respondent to pay the claimant €1,176.59 for outstanding holiday pay and €300 compensation for this breach of the Act.