Complainant

Respondent

Parties

Ciara  McCarthy

Colin Lynam (amended on consent at hearing)  

Representatives

Austin Byrne

Claire Bruton BL instructed by  O’Scannaill  Solicitors

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040417-001

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040417-002

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00040417-003

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00040417-004

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967(withdrawn at hearing)

CA-00040417-005

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000(withdrawn at hearing)

CA-00040417-006

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000(withdrawn at hearing)

CA-00040417-007

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000(withdrawn at hearing)

CA-00040417-008

14/10/2020

On 9th October 2020, the Complainant, a Dental Practice Manager, submitted 8 claims against her former Employer, Colin Lynam. The complaints arose from claims in relation to the Terms of Employment Act, 1994 and the Redundancy Payments Act 1967.  The Complainant clarified that she did not intend to advance claims under the Protection of Employment Act, 1977 and withdrew 3 complaints under that Legislation and one complaint under the Redundancy Payments Act at hearing.

These claims are conjoined with ADJ 30128 and ADJ 30134 and surround the circumstances of a change in the running of a business with which the complainant had been employed since March 2008. The Complainant was represented by Austin Byrne.

The Respondent has disputed the claims and was represented by Claire Bruton, BL.

The case came for hearing on December 1, 2021, following an earlier cancellation in May 2021 set to accommodate the alignment of all three complaints. The Respondent consented to the amended Legal Entity at hearing.

On 18 November, the Respondent Solicitor raised a concern on the absence of a particularisation of the claims and called upon the WRC to provide such a document, prior to a formal response.

Mr Byrne provided an outline of the claims on 24 November 2021 and attached a contract of employment. The Respondent submitted a written submission in response.

This case is prefaced by a Preliminary Argument on statutory time limits.

Preliminary argument on time limit Terms of Employment (Information) Act, 1994

Counsel submitted that the Complainant had erred in submitting her complaint on 14 October 2020, outside the 6-month window in accordance with Section 41(6) of the Workplace Relations Act, 2015.

The Complainant Representative disputed this and confirmed that the complaint was in time, as supported by the WRC advisory service.

I asked the Complainant side if they wished to make application for an extension of time in accordance with Section 41(8) of the Act. Some delay ensued and the Respondent sought a direction that I dismiss the claim if the Complainant side continued to refrain from making application to extend time.

The Complainant Representative made application for an extension of time in accordance with Section 41(8) of the Act.  He submitted that the complainant was an ordinary citizen, without an expanded understanding of the law. She wished to make her case before the WRC, and he argued that it had taken the complainant some time to research and identify the wrongdoing she experienced at the employment. He requested that some leniencies be applied and an extension on reasonable cause be granted.

This submission was opposed by the Respondent Counsel when she argued that ignorance of the law should not be accepted as a defence to the delay. The Complainant had been notified of the transfer of business on 27 January 2020. This change was affected on February 1, 2020, and afforded the complainant sufficient time to submit a claim.

Mr Byrne for the Complainant outlined that the Complainant had worked as Practice Manager for the Respondent Dentist from March 1, 2008, until July 2020, when the Business was taken over by the Respondent outlined in both conjoined cases.

It was the Complainant case that on 27 January 2020, she was casually informed by the Respondent that the Business was sold, and the transfer of ownership was complete.

The Complainant was totally surprised by this announcement and was prevented in questioning the development as patients had commenced attending the practice.

Later that day, the Respondent explained that “Legal reasons “militated against an earlier disclosure.

The Complainant was dissatisfied as she was the last to know as other staff had been informed the previous week. She felt disrespected and left out when the new owner presented within a two-day time scale. She later realised that she was the sole employee who was eligible for statutory redundancy.

Assurances that nothing would change at the business were soon dispelled for the complainant when she discovered that the business was moving in the direction of “new clinical and aesthetic procedures “in which she was not trained.

The Complainant felt pressurised by the approach of the new owner in relation to proposed new roles of Treatment Co Ordinator, Business Manager and enhanced Orthodontic service. Her representative contended that she had been deliberately excluded from consultation and change and had been co -erced by the incumbent Respondent. He added that the Respondent had not aided the Complainant when he habitually directed her operational queries towards the new owner.  

The Complainant became ill and progressed on sick leave and resigned from there in July 2020.

Complainant Evidence:

The Complainant submitted that the change of business had been shrouded in secrecy as other colleagues knew about the developments in August 2019 and were requested not to address her on these.

She submitted that by the time of the unanticipated disclosure on change on January 27, 2020, she had been disrespected by her employer of 12 years. The Respondent told her within a five-minute period that he had sold the Clinic without offering a legal reason. She believed that she had been purposefully excluded from the change.

The Complainant contended that she really wanted to be practice manager but had been left with no option to leave through resignation.

She said that she had been overwhelmed by proposals to completely transform her role from February 2020 onwards by the new owner. she was not provided with a commensurate job description, nor had she agreed to take on any of the roles.

During cross examination, the complainant confirmed that she was totally unaware that the business was in transition until she found out on 27 January. She did not have the cover of 30-day consultation period and as “last to know” maintained that she was humiliated in front of the other staff.

The Complainant contended that the Respondent ought to have acted much sooner. She outlined the jobs she was asked to diversify into but qualified that she had not agreed to change. The extra duties were impossible, and the proposed system was simply not viable.

She was also overtaken with the clinical responsibility for PPE due to Covid Pandemic and found everything stressful. She was apprehensive on the ongoing proposed changes which she did not believe were possible.

She requested additional help in “job share “augmentation but she was refused by the new Owner.

She recalled that by end of June 2020 and on the advice of her family, she submitted a sick note followed by her resignation. She could not contemplate a return. She did not want to work with the new Owner. She recalled that the Respondent delayed for over a month before he came to her. She countered that both he and the new Owner knew that she was aggrieved.

The Complainant has since relaunched as Dental Nurse, for which she applied after her resignation.

The Complainant clarified that she was seeking compensation from the Respondent for not being granted redundancy.

The Complainant later clarified that she had not approached the Respondent to seek redundancy within her job tenure.

CA-00040417-001 Terms of Employment Act ,1994

The Complainant submitted that she had not received a statement in writing on her terms of employment.

CA-00040417-002 Terms of Employment Act, 1994

The Complainant submitted that she had not been notified in writing of a change in her terms of employment.

CA-00040417-003   Redundancy

The Complainant submitted that she had not received a Redundancy Payment.

CA-00040417-004 Redundancy

The Complainant submitted that she had not received the correct Redundancy Payment.

In conclusion, Mr Byrne, for the Complainant reaffirmed that the Complainant had been co -erced in the workload directed towards her. She became overwhelmed and ill as a result.

He contended that the Respondent had fudged comments on the trajectory of the business during the case.

CA-00040417-005   Redundancy. Complainant confirmed that she was not progressing this case and it stands withdrawn.

  CA-00040417-006 Protection of Employee Act, 1977. Complainant confirmed that she was not progressing this case and it stands withdrawn.

CA-00040417-007 Protection of Employee Act, 1977. Complainant confirmed that she was not progressing this case and it stands withdrawn.

CA-00040417-008 Protection of Employee Act, 1977. Complainant confirmed that she was not progressing this case and it stands withdrawn.

The Respondent is a Dentist and in the context of this case was the Dentist who sold the Business to the Respondent now detailed in the conjoined cases of ADJ 30128 and ADJ 30134.

The Respondent accepted the commencement date relied on by the Complainant as March 1, 2008 and exhibited a copy of the contract of employment.

Counsel for the Respondent submitted that the Dental Practice was sold and transferred to the Respondent in the conjoined cases on 31 January 2020.

She argued that the Respondent had no valid claims against him in circumstances where he ceased to be the Complainants employer on 31 January 2020 outside of the requisite 6 months for bringing of employment claims and all rights and liabilities, he held in respect of the Complainant had transferred to the first named Respondent.

CA-00040417-001 Terms of Employment Act ,1994

The Respondent argued that the claim was misconceived as the Complainant had been furnished with a statement of her terms of employment by means of the contract of employment signed by both parties on 1 March 2018.

CA-00040417-002 Terms of Employment Act, 1994

Counsel for the Respondent argued that the Respondent had not changed the Complainants terms of conditions of employment which transferred automatically under TUPE on 31 January ,2020.

CA-00040417-003   Redundancy

The Respondent disputed that the Complainant was entitled to a redundancy payment when she had continued in employment in the aftermath of the TUPE transfer.

CA-00040417-004 Redundancy

The Respondent disputed that the Complainant was entitled to a redundancy payment when she had continued in employment in the aftermath of the TUPE transfer.

CA-00040417-005   Redundancy. The Respondent accepted that the complainant was not progressing this case and it stands withdrawn.

  CA-00040417-006 Protection of Employee Act, 1977. The Respondent accepted that the Complainant was not progressing this case and it stands withdrawn.

CA-00040417-007 Protection of Employee Act, 1977. The Respondent accepted that the Complainant she was not progressing this case and it stands withdrawn.

CA-00040417-008 Protection of Employee Act, 1977.  The Respondent accepted that the Complainant confirmed that she was not progressing this case and it stands withdrawn.

Evidence of the Respondent:

The Respondent confirmed that the parties had worked together for 12 years. He recalled that they had had a warm and friendly working relationship. He countered the description of him by the Complainant as “arrogant and condescending “as “inaccurate “and “mischaracterised “

He told the hearing that the complainant had not approached him to convey that she was unhappy in the aftermath of the transfer. He understood staff were surprised by the complainant’s departure.

He recalled that negotiations on the sale of the business were “vigorous and stressful”, and he was not aware that the Sale had materialised until the day before the sale cited as January 23. He subsequently informed two staff of the impending sale. There had been some confusion on two possible dates of sale between 1 and 14 February 2020

He recalled that the Complainant had taken unapproved leave on the day in which he first notified staff of the sale. He confirmed that he had addressed the Complainant on the developments on her return to work on January 27, 2020.

 He said that he explained that terms and conditions would be respected and everything as far as he knew would initially stay the same,

He stated that he was being advised on TUPE by a named Business Manager.

He maintained an agreed presence in the business post transfer and confirmed that he was aware that the Complainant was under pressure and unhappy. He advised her to be direct on the parameters of her previous role and re-assured her that she could not be forced to change. He was not aware that the complainant was planning on leaving. He confirmed that the Hygienist had transferred employment on three-day week to his other practice

During cross examination, Mr Byrne reminded the Respondent that the Complainants Relative had been sick in January.

The Respondent considered he may not have received optimal information on obligations to staff from his Financial Broker.

In clarifications, the Respondent confirmed that the Complainant had not requested a Redundancy payment during the transfer process. He did not have experience in the administration of TUPE. He confirmed that change had not occurred in the Complainants terms and conditions. He had not sat down with the complainant to consult on the changes outside an overall assurance that terms and conditions would remain the same for her.

In conclusion, the Respondent re-affirmed that the complainants’ terms and conditions had not altered. Liability for the Complainants employment had passed to the Respondent in the conjoined cases by operation of TUPE on 31 January 2020. The Respondent was shocked by the allegations lodged given their pre-existing working relationship. 

I have given careful consideration to these four standalone claims against the named Respondent in the conjoined case.

In reaching my decision, I have considered the written submissions, followed by oral evidence adduced.

Before I address the Preliminary and substantive arguments enroute to my decision. I must spend a moment in reflection on the situational back drop to this case.

The parties had worked together for almost 12 years by the time of the announcement of sale in January 2020. In an omission of significant proportions, neither the Transferor (the Respondent in this case) or the Transferee (the Respondent in the conjoined cases) observed the necessary protocols governing a Transfer of Undertakings.

I have grave difficulty accepting the Respondent evidence that he was not versed in TUPE and that he relied on the external advice of a Business Advisor, which in turn failed to trigger the obligatory Consultation. A Business sale is always accompanied by “due diligence in an accounting sense” which should also be simultaneously accompanied by a reciprocal due diligence in staff management.

I accept the Complainants point that the notification of sale was random and not accompanied by the employee respect envisaged by Council Directive No 2001/23/EC of 12 March 2001, the Acquired Rights Directive adopted by way of statutory Instrument into Irish Law on 11 April 2003 in the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

In Suzen v Zehnacker Gebaudereinigung Gmbh Krankenhausservice C-13/95, 1997, The aim of the Directive is to ensure continuity of employment relationship within an economic entity …. the decisive criterion for establishing the existence of a transfer within the meaning of the Directive is whether the entity in question retains its identity as indicated inter alia by the fact that its operation is continued or resumed ….

 In accordance with TUPE Regulations, transfer of employee to transferee is automatic irrespective of the wishes of either party. Article 1, Para 3 of the Directive. The transfer of the employment relationship occurs ipso iure, by operation of law. The Directive does not provide for the right of employees to object to the transfer.

In Katisikas v Konssstantinidis C-132, 138, 139/91 involved a case where Mr Katsikas was employed as a cook owned by Mr Konsstanantinidis, who went on to sell the restaurant. Mr Katisikas refused to work for the new owner and was dismissed.

The ECJ held that the purpose of the directive was not to obligate an employee to transfer. The employee is free to work for whom she chooses but the Directive does not operate to safeguard and preserve employment with the Transferor.

There is no provision for raising an objection to transfer in the Irish Regulations. In Katisikas, the ECJ held that it is for the Member States to determine what the fate of the contract of employment with the transferor should be.

The overarching point in this case is that the Complainant did not register an objection to the transfer of employment dated as 31 January 2020. Therefore, the facts of the case are distinguished from the Katisikas case. The Complainant accepted the transfer of the business and made the transition to the new Owner. I realise that she understood that she had no choice. However, I will return to this argument in the context of the Complainants claim for Redundancy.

Preliminary Issue:  Time Limits

Section 41(6) of the Workplace Relations Act, 2015

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.

The Complainant has submitted that she should be permitted to advance her claim in accordance with Section 41(8) by means of an extension on reasonable cause.

The Complainant has approached this case clearly carrying a high level of dissatisfaction on how the Respondent changed her working life. I say this as the complainant exhibited a high level of emotion and I had to navigate carefully and respectfully through this in my inquiry into the facts of the case. 

At the outset, the complainant sought to rely on advice that her claim was in time, and she was not required to seek an extension of time. It was following the Respondent request for a direction to dismiss the claim that the complainant sought that extension.

The Respondent requested that the claims under Terms of Employment Act be dismissed as out of time.

The Law on reasonable cause is found in case law such as Cementation Skanska v Carroll at the Labour Court WTC 0338 in 2003

“In considering if reasonable cause exists, it is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay … “

The Complainant has requested that I consider that it took time for her to associate the occurrences in her employment as “wrongs “she said that she had been ill and very aggrieved at her stated disregard   by her former employer. This hindered her in acting sooner and within the statutory time limits. The Complainant has accepted that her employment ended with the Respondent on January 30, 2020, through TUPE.

The Complainant did not submit medical evidence in support of her claim that illness may have delayed submission of the claim.

She has also submitted that she did not have knowledge of the law to ground her complaint in time.

The Complainant contended that the external advice she received had re-assured her that her claims were in time.

 I must make my decision in accordance with the parameters of Section 41(6) of the Act.

I am willing to consider the first claim under “the subsisting /continuous contravention “prism. However, the employment ended on January 31, 2020, and would need an extension by reasonable cause to allow me the jurisdiction to rule on the complaints.

I fully accept and welcome the Complainant as a Lay Litigant, but while she has explained the delay. She has not provided a justifiable excuse for the delay.

The Complainants primary argument is that she was ignorant of her legal position.

In Minister for Finance v CPSU /PSEU/ [2007] 18 ELR 36, Justice Laffoy addressed   the Respondent submissions set out below.  

“Ignorance of one’s legal position, as distinct from the ignorance of the underlying facts which might constitute the alleged wrongful act, cannot as a matter of law constitute justification for an extension of time stipulated in S 19(5) of Employment Equality Act 1977.”

When she held that

It is established jurisprudence in this jurisdiction that lack of knowledge or awareness on the part of a claimant, or the absence of a legal precedent which indicates that as a matter of law a claim will have a successful outcome, does not prevent a statutory limitation period from starting to run

Time runs within the provisions of Section 41(6) of the Act, and I have not established reasonable cause emanating from the complainants’ arguments for me to grant an extension of time in this case. The employment ended on 31 January 2020 and the delay was excessively pronounced prior to lodging the claim on 14 October 2020.

The Preliminary argument is awarded in favour of the Respondent in the case.

Substantive Case:

CA-00040417-001 Terms of Employment Act ,1994

The Claim is statute barred. It is not well founded.

CA-00040417-002 Terms of Employment Act, 1994

Section 5 of the Act provides provisions on the notification of changes in the Statement furnished by an Employer.

5. Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The Claim is statute barred. It is not well founded.

CA-00040417-003   Redundancy

The Complainant has submitted that she wanted a statutory redundancy payment from the Respondent in this case. She is not hampered by time limits in this case as   the time limit for claim advancement under the Redundancy Payments Act 1967, as amended   is 12 months and a further 12 months by reasonable cause.

The Complainant has accepted that she agreed to transfer employment to the Respondent in the conjoined cases. I fully appreciate that she was a reluctant participant in that transfer, however, she continued in the role of Practice Manager from 31 January 2020 to the time of her resignation in July 2020. The Respondent continued in the business on a step-down basis with the conjoined Respondent.

I note that the contract of employment shared by the parties provided for an expansive clause on the Grievance Procedure:

Dr Lynam wishes to provide every opportunity for every employee to express themselves without fear of jeopardising their position. It is in everybody’s interests to establish a clear procedure for the resolution of any issues that may arise in the workplace. Full recognition is given to the significance of personal grievances. Disputes will be dealt with without undue delay. You have a right to have a work colleague with you throughout the grievance meetings if appropriate …….

The Complainant did not action this procedure to address her dissatisfaction on the swift notification of transfer or against the transfer itself. She did not object to the transfer.

Article 4 of the Directive provides:

The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee.

I was concerned by the lack of consultation by the Transferor, the Respondent with the Complainant in this case. I began to wonder if a Transfer of Undertakings has occurred.

In my findings on this, I drew from Spijkers v Gebroaeders Benedik Abbatoir CV case C-24/85, [1986] ECR 119 on retention of identity.

This was a case where the transfer of undertakings was based on an overall assessment of 7 criteria

1 type of business

2 transfers of tangible assets

3 values of intangible assets

4 takeovers of majority of the employees by the new owner

5 transfers of customers

6 degrees of similarity between activities carried out before and after transfer

7 period, if any, for which activities suspended

In the Advocate General Slynn opinion:

The overriding objective to the Directive is to protect workers in a business which is transferred. In deciding whether there had been a transfer, all the circumstances must be looked at. Technical rules have to be avoided … the substance matters more than the form. The essential question is whether the transferee has obtained a business or undertaking, or part thereof which he can continue to operate. That at the time of transfer, the business is still active, that machinery is being used, customers supplied, workers employed and that all the physical assets and goodwill are sold are strong indicators that a transfer has taken place.

I have had regard for the evidence of the parties on what happened at the business following 31 January 2020 and I am satisfied that the complainants   employment was transferred via TUPE to the employment of the Respondent in the conjoined cases. She continued to attend the same premises in her capacity as Practice Manager. She attended the same customers, using the same machinery as before. She was paid by the respondent in the conjoined cases. There was no interruption in service.

I have found that TUPE covered this transfer of employment, albeit the stated deficiencies on how it was prepared and communicated.

This brings me to the core of the Complainants claim for a Redundancy payment.

It was very clear to me from the Complainants evidence that she viewed that her employment as she knew it ended when the transfer took place at the end of January 2020. She did not identify with the new Owner.

Redundancy involves a dismissal and is a time of “impersonality and change” St Ledger v Frontline Distributors Ireland ltd [1995] ELR 160

However, the circumstances which accompany a redundancy are outlined in section 7(2) of the Redundancy Payments Act, 1967 and state:

General right to redundancy payment.

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, 

 Redundancy refers to a job or position.

The question of whether a claim for Redundancy can succeed under the umbrella of TUPE has been considered in the High Court in the case of Symantec ltd v Leddy and Lyons [2010]1 ILRM 12, this was a case where the employees had objected to a transfer of part of a business and had been informed in advance that a failure to transfer would be treated as a resignation. The EAT had identified that a Redundancy situation prevailed.

Justice Edwards held that an objection to the transfer did not amount to a negation of the transfer, which carried on without them, by application of Art 4 of the TUPE Regulations.

4(1) it is not possible for the defendants in this case to make a redundancy claim against the plaintiff. The court stated that the Irish implementing legislation does not make any particular provision as to what will occur if employees decide not to transfer. The court confirmed that if an employee objects to a transfer the transfer goes ahead regardless unless a Member State expressly provides for the contrary in its implementing legislation. The court confirmed that the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferor's employment. (Katsikas v Konstantinidis (conjoined with Schroll v PCO Strauereibetreib Paetz & Co Nfl GmbH) [1992] ECR I 6577 followed).

This leaves a complainant uneasy with transfer with a difficult decision, where in the absence of Legislative guidance, the only alternative to transfer seems to be a resignation of employment without the protection of a statutory Redundancy lump sum.

The Labour Court also followed this approach in Ardcolum Motor Factors ltd and Gildea RPD 1713

In the instant case, it was open to the parties to engage on whether a voluntary “severance arrangement “was a viable option for the parties. However, there is no statutory basis to such an occurrence which takes place completely on a voluntary basis to mutually conclude an employment. I note that the parties did not have that engagement.

I have found that the complainant drifted into the new employment, not really sure of her options. I have found that she got somewhat lost in that transfer.

She has retained an anger against the Respondent which has contributed to her view that she was dismissed by means of Redundancy when the new employer took over. She holds a very strong view in that regard.

However, I cannot find in her favour in that regard. The Complainant was not dismissed by means of Redundancy.

I have found that the Complainant was covered by the application of Section 4(1) of TUPE Regulations when she transferred employment on Friday, January 31, 202O. She continued in that employment until her resignation in July 2020.

The claim is not well founded. 

CA-00040417-004 Redundancy

This claim is addressed in CA-00040417-004 and is a duplicate claim.

The claim is not well founded.

CA-00040417-005   Redundancy. Complainant confirmed that she was not progressing this case and it stands withdrawn.

  CA-00040417-006 Protection of Employee Act, 1977. Complainant confirmed that she was not progressing this case and it stands withdrawn.

CA-00040417-007 Protection of Employee Act, 1977. Complainant confirmed that she was not progressing this case and it stands withdrawn.

CA-00040417-008 Protection of Employee Act, 1977. Complainant confirmed that she was not progressing this case and it stands withdrawn.

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 7 of the Terms of Employment Act, 1994 requires that I make a decision in relation to the complaint in accordance with Sections 3 and 5 of that Act.

CA-00040417-001 Terms of Employment Act

I have found the claim is out of time. It is not well founded.

 CA-00040417-002 Terms of Employment Act

I have found the claim is out of time. It is not well founded.   

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-00040417-003   Redundancy

The claim for a lump sum redundancy payment is not well founded.

CA-00040417-004   Redundancy

The claim for a lump sum redundancy payment is not well founded.

Terms of Employment, Redundancy in context of TUPE