ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027361
Parties:
| Complainant | Respondent |
Parties | Sarah Corcoran | DSPCA Veterinary Hospital |
Representatives | N/A | N/A |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00034830-004 | 24/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00035039-001 | 24/02/2020 |
Date of Adjudication Hearing: 09/11/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 and the Complainant agreed to proceed in the knowledge that decisions issuing from the WRC would disclose her identity.
The Complainant gave sworn evidence. The Respondent’s did not attend to give evidence. I am satisfied that the Respondent was on notice of the hearing.
Background:
The Complainant stated that there was inadequate consultation regarding a transfer of undertaking which took place on 31 March 2019. She also asserted that she was entitled to a redundancy payment as a result of the transfer. |
Summary of Complainant’s Case:
The Complainant stated that there was inadequate consultation regarding a transfer of undertaking which took place on 31 March 2019. She also asserted that she was entitled to a redundancy payment as a result of the transfer. |
Summary of Respondent’s Case:
The Respondent did not attend to give evidence. |
Findings and Conclusions:
CA-00034830-004: The Law The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. Findings I note that the transfer took place on 31 March 2019, which I am satisfied was the date of contravention and that this complaint was referred to the WRC on 24 February 2020. According to s 41(6) of the Workplace Relations Act cited above, the complaint should have been presented to the WRC within 6 months of the contravention. In the absence of any reasonable cause presented to me by the Complainant to explain why it was not presented within this timeframe, I find that I do not have jurisdiction to hear this complaint. CA-00035039-001: The Law The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows: 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 four 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 for one or more reasons not related to the employee concerned 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 in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained, Findings Given that the Complainant stated in evidence that her employment transferred to the Transferee on the transfer date, I find that she was not dismissed and that a redundancy situation did not therefore arise |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.
CA-00034830-004: I find that this complaint is not well founded for the reasons set out above. CA-00035039-001: I find that this complaint is not well founded for the reasons set out above. |
Dated: 18th November 2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
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