MND228

1.Appeal Of Adjudication Officer Decision NoADJ-00024763.

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 25 June 2020 under theMinimum Notice and Terms of Employment Acts, 1973 to 2005. A Labour Court hearing took place on 14 January 2021. The following is the Determination of the Court:



DETERMINATION:

Background to the Appeal:

This is an appeal by Mr Christopher Carroll (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00024763/CA-00029384-004, dated 17 June 2020) under the Minimum Notice and Terms of Employment Act 1973 (‘the Act’). The Respondent’s Notice of Appeal was received by the Court on 25 June 2020. The Court heard the appeal in a virtual courtroom on 14 January 2021 in conjunction with an appeal by the Respondent from ADJ-00024763/CA-00029384-007 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The Court’s determination in that appeal bears reference number TU/20/26. The Court declined to uphold the Respondent’s appeal under the 2003 Regulations.


Factual Matrix:

The Complainant in this matter is Ms Mary Campbell (hereafter, ‘the Complainant’). She was employed as an assistant in the local post office in Kiltimagh, County Mayo, by Ms Marion Dunne until Ms Dunne ceased trading on Friday, 12 April 2019. The Respondent opened a post office in a dedicated area within a Londis store which he runs with members of his family on Monday, 15 April 2019. The Londis store is located approximately twenty to thirty metres from the premises in which Ms Dunne had operated her post office business.

It is common case the Complainant’s employment with Ms Dunne commenced on 16 June 2017. The Complainant told the Court that that she worked 16 hours per week, over two days, for Ms Dunne and was paid €10.00 per hour. The Respondent sought to question this on the basis that he believes Ms Dunne had verbally informed him that the Complainant had worked only one day per week for her. Having examined a selection of payslips submitted by the Complainant, the Court is satisfied that the Complainant normally worked a minimum of two days per week when in Ms Dunne’s employment.

The Complainant’s employment ceased on Ms Dunne’s last trading day, 12 April 2019. The Complainant did not receive any notice period or payment in lieu of notice from Ms Dunne as the latter was of the view that the Complainant’s employment would transfer to the Respondent pursuant to the Regulations.

The Respondent submits that as no transfer of undertakings took place between Ms Dunne’s former business and its business and as the Complainant was never in the Respondent’s employment (by virtue of the operation of the Regulations or otherwise), it did not terminate her employment and cannot, therefore, be said to have had any obligation to give the Complainant notice of termination of her employment under the Act.


Discussion and Decision:

The Court determined in TU/20/26 that a transfer of undertakings did take place between the business previously operated by Ms Dunne and the Respondent’s business on 15 April 2019. It follows, therefore, that any obligation with regard to outstanding statutory entitlements and rights accrued by the Complainant in her previous employment with Ms Dunne - including her right to statutory notice - passed seamlessly to the Respondent on 15 April 2019.
That being the case, the Court finds that the within appeal does not succeed. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
SL	______________________
24 June 2022	Deputy Chairman