Complainant

Respondent

Parties

David  Russell

Blackwell And Wright Senior Care Limited Home Instead Senior Care

Representatives

Joanna Kwiatkowska

Adare HR

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-00054104-001

12/12/2022

The hearing was conducted remotely 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.

The Complainant swore an affirmation.

The General Manager, Mr Dermot Carberry, gave evidence on affirmation on behalf of the Respondent.

Submissions were filed in advance of the hearing and both parties were advised to open any relevant documentation in evidence they sought to rely on.

The parties did cross examine the other side and asked on several occasions was there anything further the parties wanted to put before the hearing in evidence.

The Complaint Form was received by the WRC on 12 December 2022.

The Complainant gave evidence that he was a Healthcare Assistant who worked in a highly specialised area of care. He commenced employment on 9 November 2016. In December 2021 he was advised that the Respondent were not successful in a tender process and therefore the Respondent’s contract would be coming to an end. The Complainant stated in his evidence that his employment was terminated with the Respondent on 28 February 2022.

The Complainant explained that he was asked to re-apply for a new job with the incoming contractor and underwent an interview, Garda vetting and had a 6-month probation period. He also explained that the terms and conditions differed from that which he had with the Respondent nor was his previous service acknowledged.

It was the Complainant’s evidence that he was told TUPE applied but this was refuted by his new employer.

Under cross examination, the Complainant  agreed that it was the same group of staff looking after the same service user with the same equipment and same training schedule.

Preliminary Objection

In response to the Respondent’s application , it was submitted by the Complainant’s representative that the Complainant’s employment ended on 28 February 2022.  

Preliminary Objection

It was submitted on behalf of the Respondent that where the Complainant’s employment ended on 28 February 2022 and the Complaint Form was not received by the WRC until 12 December 2022 that it is outside the statutory time limit provided for under Section 24 of the Redundancy Payments Act 1967  (as amended).

Substantive Claim

It was the evidence of the General Manager that the 17 staff involved were informed of the outcome of the tender process in December 2021 and their employment with the Respondent would come to an end in February 2022.

The General Manager confirmed that the same staff , same equipment, and same service user that  the new contractor took over.

It was the evidence of the General Manager that he informed the Complainant both in person and through email that this was a TUPE situation. In response to an email sent to the General Manager from the Complainant on 16 March 2022 , a detailed explanation was set out in writing to the Complainant as to the situation and where a TUPE situation did arise in this case.

The General Manager also produced a letter sent to the new contractor dated 16 February 2022 advising of its concerns of the failure of the new contractor to honour its obligations under TUPE. It was his evidence that no reply from the contractor was received to that letter.

Redundancy Payment Acts 1967 (as amended) sets out the timeline for such claims under Section 24 as follows:-

“24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.”

Section 24 (2A) continues:-

-2A Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied] that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

Section 24 of the amending Redundancy Payments Act 1971 extended the period allowed for a Complainant to make a complaint under the Redundancy Payment Acts from thirty weeks to fifty-two weeks from the date of dismissal.

Where the Complainant’s employment ended on 28 February 2022 and his complaint was received by the  WRC on 12 December 2022, I find that the complaint is within the time period provided for in Section 24 (2A).

Substantive Claim

It was confirmed with the parties both at the outset of the hearing and again during the course of the hearing that this was a redundancy claim only and there was no claim under the TUPE legislation. Both parties agreed.

Section 9 (3) of the Redundancy Payment Acts 1967 (as amended) provides where a new employer

“(3) (a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if—

(i) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment,

(ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer,

(iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which—

(A) sets out the terms and conditions of the employee’s contract of employment with the new employer,

(B) specifies that the employee’s period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer,

(C) contains particulars of the service mentioned in clause (B), and

(D) the employee notifies in writing the new employer that the employee accepts the statement required by this subparagraph.

(b) Where in accordance with this subsection an employee is re-engaged by the new employer, the service of that employee with the previous employer shall for the purposes of this Act be deemed to be service with the new employer.”

The evidence of the  Complainant was particularly important in relation to efforts he had to go to secure a new position with the new contractor with different terms and conditions albeit in the same place of work with the same client and the same training and equipment.

It was accepted by the Respondent throughout the hearing that this was not a case of redundancy but a TUPE situation. This was evidenced by the letter from 16 February 2022 to the new contractor from the Respondent  and the email to the Complainant of 22 March 2022.

Regulation 4 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 very clearly sets out the obligations of the employer(s) - the transferor and transferee in this case:-

4.          (1)     The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

 (2)      Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Regulation 5 (3) provides:-

(3)      If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.”

The employer is defined under Regulation 1 as:-

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;”

Where the Respondent (Transferor) is arguing that this is not a redundancy situation, the only evidence before me of the efforts made to ensure that the Complainant’s contract of employment, which was entered into between the Complainant and Respondent, was observed by the new contractor (Transferee) was the letter of 16 February 2022. While it is accepted that there as a concern by the Respondent it does not go far enough to discharge its obligations under the TUPE Regulation.

The Complainant decided not to initiate a complaint under the TUPE regulations and therefore, the new contractor (Transferee) was not present at the hearing. Consequently, I am prohibited in my jurisdiction to make any finding against the Transferee.

On the basis there was no re-engagement of the Complainant on the same terms and conditions of employment he enjoyed with the Respondent, I find he was dismissed by way of redundancy under Section 9 (1) of the Redundancy Payments Act 1967 (as amended).

I find the Complainant is entitled to redundancy payment pursuant to the Redundancy Payment Acts 1967 (as amended) on the following basis:

Start Date: 09 November 2016

Notification Date: 18 December 2021

Termination Date: 28 February 2022

Hours Worked Per Week: 39 Hours

Weekly Gross Wage: €800

This payment is subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy – TUPE