Complainant

Respondent

Anonymised Parties

Catering Assistant

Cafe

Representatives

Mr. Dusan Stipala

No Appearance

Act

Complaint Reference No.

Date of Receipt

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

CA-00055113-001

15/02/2023

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

CA-00055309-001

28/02/2023

The Complainant commenced work with the Respondent on 24th June 2019. The Complainant worked for 25 hours per week, for which she was paid the sum of €252.00. The Complainant’s employment was terminated on 11th June 2022, with the closure of the business.

On 28th February 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that as her dismissal occurred as a result of the closure of the business, she was entitled to a statutory redundancy payment. No rebutting submission was received from the Respondent in this regard.

A hearing in relation to this matter was convened for, and finalised on, 12th September 2023. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

In advance of the hearing, a lay representative corresponded with the Commission. Herein, she submitted that the business had ceased trading some time previous and had, in the interim, been the subject of family law proceedings. In this regard, she submitted that the documents not been collected and that the Respondent had only become aware of the issue in the days leading up to the hearing. On this grounds, the representative for the Respondent applied for an adjournment of the proceedings. Having considered this application, the same was not granted. All correspondence was issued to the correct registered address of the Respondent. While the Respondent may no longer have been operating from that address, they had an obligation either to periodically check their post or arrange for the same to be issued to them. I further note that the Respondent did not provide any evidence of an actual prejudice arising from this late acknowledgement of the proceedings.

In circumstances whereby family law proceedings were referenced in this section, I have utilised my discretion to anonymise the decision in its published form.

In evidence the Complainant stated that she was employed as a catering assistant with the Respondent organisation. She stated that she worked 25 hours per week and received a weekly payment of €252.00 in remuneration. On 9th June 2022, the Complainant received notification that the Respondent business was to close. Thereafter, on 11th June 2022, the premises closed and the Complainant’s employment was terminated.

Sometime later, a new owner of the Respondent business contacted the Complainant and asked if she wished to take up employment at a new premises. The Complainant stated that she would be interested in the same and commenced employment at the new premises under new management on 11th July 2022. The Complainant stated that the relevant documentation in this regard was clear in that the new role was not a continuation of her previous employment, in this regard she opened her contract of employment and correspondence from this employment, clearly stating that her start date in 11th July 2022. In addition to the foregoing, the Complainant stated that she worked different hours, at different times at the new business. In addition to the same, she further submitted that the management and reporting structure was entirely different at this new business and was not a continuation of her previous employment. 

While a lay representative appeared for the Respondent, her attendance was primarily to seek an adjournment of the proceedings. In this regard she submitted that she had no direct knowledge of the events in question and could not provide contradicting evidence in relation to the same. In addition to the foregoing, no submission was received from the Respondent and no witnesses were called to rebut the Complainant’s evidence.

The present complaint involves an allegation that the Complainant’s role was terminated on the grounds of redundancy and she is therefore entitled to a statutory redundancy payment. The Respondent provided no rebutting witnesses or evidence in this regard.

While the Complainant’s evidence was essentially uncontested, it remains incumbent upon her to prove the primary facts of her case. In this regard, the initial part of the complaint is quite simple - the premises where the Complainant was employed closed down and her employment terminated on this ground.

In this regard, it is noted that Section 7(2) of the Act provides that,

“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 purpose 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”

Having regard to the foregoing, it is apparent that the closure of the premises where the Complainant was employment would, ordinarily, entitle the Complainant to a statutory notice payment.

Matters are complicated somewhat by the Complainant taking up a new role in a business under new ownership some weeks later. In the event that this new employment is deemed to constitute a transfer on undertakings, the Complainant would not be entitled to a redundancy payment at the finalisation of her employment with the Respondent, as the same would have been deemed to be continuous with new employment.

The first point to note in relation to the same, is that the Respondent did not advance this argument. Indeed, the only reason that the Adjudicator is aware of the new employment at all is that the Complainant apparently anticipated that this would be raised in defence of her substantive complaint. Nonetheless, the matter has been raised and must be considered.

In this regard, Regulation 3(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) provides that,

“These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.”

Subsection 2 goes on to defines these terms in the following manner,

“transfer” means the transfer of an economic entity which retains its identity;

“economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.”

In the matter of Spijkers v Gebroe Benedik Abbatoir CV[1986] ECR 119, the ECJ outlined a set of criteria which provide guidance when it comes to deciding whether a transfer of undertakings has occurred. The criteria, known as the “Spijkers Criteria” are as follows:

1.       Was the undertaking a stable undertaking, with an ongoing life of its own?

2.       Has the entity retained its identity?

3.       Have some or all of the staff been taken over by the new employer?

4.       Has the customer base transferred?

5.       Are the activities post-transfer similar to those carried out before transfer?

6.       Has there been an interruption of the activity?

7.       Has there been a transfer of assets?

In the matter of Overpass Ltd T/A Ocean Property Management v Clancy [TUD 1713], the Labour Court held that the criteria set out in Spijkers “are the decisive criteria for establishing the existence of a transfer”. In that decision the Court summarised the application of the relevant criteria as an examination of,

“…the type of undertaking or business in question, the transfer or otherwise of tangible assets such as buildings and stocks, the value of intangible assets at the date of transfer, whether the majority of the staff are taken over by the new employer, the transfer or otherwise of the circle of customers and the degree of similarity between activities before and after the transfer, and the duration of any interruption in those activities.”

Regarding the present case, the uncontested evidence of the Complainant was that she was informed that her employment would terminate by a certain date. That date inevitably arrived, with the termination of the Complainant’s contract of employment taking effect and the Complainant applying for social welfare and seeking a redundancy payment. Prior to the Complainant’s termination no formal or informal consultation occurred regarding a potential or actual transfer of her employment. In short, the Complainant’s employment was terminated in June 2022 with the Complainant apparently believing that this termination was to be permanent.

Approximately four weeks later, the Complainant accepted an offer of employment from a new owner of the café. In this regard, I note a substantial interruption in the activity of the premises. The uncontested evidence of the Complainant was that in this new role she had a new management structure, she worked different hours and had a different system of working. In this regard, I note that the Respondent did not call any witnesses to contradict this version of events, nor was any submission received in this regard. I further note that all documentary evidence supplied by the Complainant clearly and unambiguously states that the commencement of the latter role was a new employment. While such documentary evidence is far from conclusive in these matters, it does demonstrate that the parties to the new contract of employment did not intend the same to be considered a continuation of employment.

Having considered the totality of the foregoing points, I find that a transfer of undertakings has not been established in relation to this particular contract of employment. This finding is based upon the evidence of the Complainant, the only direct evidence available, the information provided in her submission and the fact that no rebutting submission or witness evidence was provided by the Respondent.

Having regard to the foregoing, I find that the Complainant is entitled a statutory redundancy payment, and as a consequence of the same, her appeal succeeds.

CA-00055113-001

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.

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the Complainant has established the existence of a redundancy situation and the appeal succeeds.

I find that the complainant is entitled to a statutory redundancy payment based on the following:

Date employment commenced:  24th June 2019

Date Employment ceased:           11th June 022

Gross Weekly wage:                      €252.00

The entitlement is contingent on the Complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

CA-00055309-001

At the hearing it was agreed that this matter is a duplicate of the matter above and consequently was not pursued. Having regard to the same, I find that this appeal does not succeed.

Redundancy, Transfer, TUPE