FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COLD MOVE DUBLIN LIMITED (IN LIQUIDATION) (REPRESENTED BY BEAUCHAMPS SOLICITORS) - AND - MR ALAN MULVEY (REPRESENTED BY MR FRANCIS DRUMM, B.L., INSTUCTED BY MR MARTIN FARRELLY HR CONSULTING LIMITED) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00025200. This is an appeal by Mr Alan Mulvey (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00025200/CA-00032063-004, dated 20 October 2020) under the Organisation of Working Time Act 1997 (‘the Act’). The Complainant’s Notice of Appeal was received on 29 November 2020. The Court heard the appeal in Dublin on 13 July 2022, in conjunction with the Complainant’s related appeals under the Unfair Dismissals Act 1977 (UD/20/188); the Minimum Notice and Terms of Employment Act 1973 (MN/20/9); the Payment of Wages Act 1991 (PW/20/66) and the Industrial Relations Act 1969 (CD/20/328). The Factual Matrix: Cold Move (Dublin) Limited (In Liquidation) (‘the Respondent’) provided a supply chain management service for businesses involved in retail, the food service industry and manufacturing. It is fully owned by Malonvale Limited (In Liquidation) (‘Malonvale’). Mr Jason Mallon owns 100% of the shares in Malonvale. A Liquidator was appointed to both companies on 6 March 2020. It is necessary to say something about the prior history of the Respondent’s ownership in order to give context to the events that are material to the within appeal. The Respondent company was incorporated in January 2006. Mr Mallon was employed in a management position by the Respondent from 2006. In 2015, he led a management buy-out of the company. Mr John Casey joined the Respondent’s board in or around this time. A company controlled by Mr Casey – Donworth Capital Limited (‘Donworth’) - simultaneously obtained a shareholding in Malonvale which had acquired 100% ownership of the Respondent as part of the management buy-out of the latter. Mr Casey resigned as a director of the Respondent on 14 July 2019 and Mr Mallon acquired Donworth’s shareholding in Malonvale. The Respondent was experiencing cashflow difficulties at this time and underwent significant restructuring in an attempt to trade its way back to profitability. It sought the protection of the High Court and was placed in Interim Examinership. However, this was not successful and Mr Aiden Murphy of Crowe Ireland was appointed Liquidator over the Respondent. It is common case that Mr Mallon summarily dismissed the Complainant in the course of a brief telephone call on 11 October 2019. However, the Parties disagree in relation to the date on which the Complainant’s employment with the Respondent commenced. The Complainant’s case is that he commenced his employment with the Respondent “in May or June” 2018. It is submitted on the Respondent’s behalf, however, that prior to Mr Casey’s resignation as a director of the Respondent, the Complainant had been employed by Donworth and had provided management support services in a part-time consultative capacity only to the Respondent from mid-2018 up until August 2019. The Parties agree that a different company – Galmere Foods Limited – also controlled by Mr Casey – invoiced the Respondent on a monthly basis between August 2018 and July 2019 for the Complainant’s services (and those of Ms Fiona Kelly, a Data Analyst). It is also common case that the question of the Complainant’s future employment following Mr Casey’s resignation formed part of the discussions between Mr Mallon and Mr Casey in the lead-up to Mr Casey and Donworth’s exit from the Respondent’s business. On Mr Casey’s instructions, Ms Kelly forwarded an employment contract for the Complainant, by way of an attachment to an email dated 28 May 2019. Mr Mallon told the Court that he accepts that the email was sent but he did not personally open it or download the attached contract on that date or at all as he relied on his personal assistant to handle correspondence. However, he accepts that the Complainant – and Mr Casey on his behalf – was anxious to achieve some certainty about his future employment. According to Mr Mallon, discussions about exiting Mr Casey and Donworth from the Respondent’s business had been ongoing since mid-2018 and were difficult and many issues unrelated to the Complainant had priority in that context for Mr Mallon with the result that he deferred giving any attention to Mr Casey’s employment issues until the exit deal with Mr Casey was almost concluded. Decision of the Court in UD/20/188: In determining the Complainant’s claim of unfair dismissal contrary to the Unfair Dismissals Act 1977 (See Determination UD/20/188), the Court gave detailed consideration to the course of dealings between the Complainant and the Respondent. It found in its Determination in that appeal that the Complainant’s direct employment with the Respondent commenced on 17 August 2019 and terminated on 11 October 2019. Claim under the 1997 Act: The Complainant submits he was not paid for five days’ annual leave accrued in the period prior to the commencement of his direct employment with the Respondent on 17 August 2019. Discussion and Decision: Having regard to the Court’s prior determination in UD/20/188 that the Complainant was employed directly by the Respondent from 17 August 2019 to 11 October 2019, the Court determines that the within claim under the 1997 Act for five days’ annual leave accrued by the Complainant prior to the aforementioned period is not well-founded as there is no evidence before the Court that a transfer of undertakings within the meaning of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 took place between Donworth and the Respondent. Furthermore, there is no evidence before the Court that Mr Mallon, or anyone else, acting on behalf of the Respondent, assumed liability for any outstanding contractual or statutory entitlements owed to the Complainant when his employment with Donworth ceased. The Complainant’s appeal, therefore, fails. The Court notes that the Adjudication Officer awarded the Complainant €1,000.00 in compensation under the 1997 Act in respect of 2.7 days’ annual leave he accrued while employed by the Respondent. The Court upholds this award made by the Adjudication Officer. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |
