Complainant

Respondent

Anonymised Parties

An Apprentice

A Construction Company

Representatives

Unite the Union

none 

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-00039204-001

17/08/2020

The complainant had been employed by the respondent on April 19th 2017 as an apprentice.

In December 2019 he transferred to a different employer and the respondent, in due course went into liquidation in February 2020.

He claims a redundancy payment.

The complainant says that his transfer to the second employer was by way of a loan, or temporary arrangement.

On his behalf, his union submitted that such arrangements were not unusual in the construction sector.

He says that in early December 2019 he sought and received confirmation of this from a company director.

The respondent submits that the complainant was legally and formally transferred to the second employer.

There was evidence of a transfer of employment and he was registered to his new employer with Solus.

It is clear that the complaint in this case turns on the status of the complainant as an employee of the respondent. The representative of the liquidator submitted that he had been ‘formally and legally transferred’ to the second company.

The correspondence in December 2019 is relevant here.

The idea of employees, other than professional soccer players, being sent on loan to another employer is an unusual one. As noted above the union representing the complainant said at the hearing that it was not uncommon for this to happen.

Therefore, the critical question is whether the complainant’s contract of employment with the respondent was terminated by this transfer or not. Clearly, the intentions of the parties are critical on that point.

The complainant wrote to a Director of the respondent on December 16th 2019.

The email is headed; ‘Loan to [named company]’.

The email sought confirmation by the complainant that ‘my time here at [named company] is on a loan basis.’

He continued;

There seems to be some confusion when I was talking to [HR] and she seems to think I would be here permanently. I was told that I was going to be on loan until March and would be back to [the respondent].

The director replied.

‘The intention is that you will be coming back in March when the [named company] project is complete.

[They] have put you on their books for revenue and text so that all is above board. So for now you are employed by [them]

We will be in touch with you and [them] in March.

It seems to be quite clear from both these items of correspondence that the intention at the point when the ‘loan’ arrangement was made, and both the complainant’s and the respondent’s understanding of it was that he remained in the employment of the respondent.

The temporary nature of the transfer is not affected by the administrative requirements made to ensure that he would be paid and that his registration for the purposes of his apprenticeship was in order.

Neither the complainant nor the respondent were in any doubt (at least following the exchange of emails just referred to) that he was and would continue to be an employee of the respondent.

Therefore, the act which actually terminated his contract of employment was the same for him as it was for his co-workers; the liquidation of the company on February 17th, 2020.

He is therefore entitled to a payment under the Redundancy Payments Acts based on his service with the respondent between April 19th 2017 and February 17th 2020.

For the reasons set out above Complaint CA-00039204-001 is well founded. He is entitled to a redundancy payment based on his service with the respondent between April 19th, 2017 and February 17th 2020.

Redundancy