ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00026563

Parties:

	Complainant	Respondent
Parties	Elizabeth Egan	Vevay Management Limited The Arc Cinema

Representatives

Paul Egan

Conor Cahill, Sheehan & Company Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033691-001	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033691-002	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-003	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-004	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-005	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-006	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-007	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-008	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-009	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-010	30/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00033691-011	30/12/2019

Date of Adjudication Hearing: 15/11/2022

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This hearing was held in conjunction with that of ADJ 26493 and this decision should be read in conjunction with that decision.

By way of a preliminary point, the Respondent stated that the Complainant had never been employed by the company and asserted that Vevay Management Limited was simply used as a vehicle to pay her salary, which was recharged to her employer, a separate and related group company, Melcorpo Commercial Properties Unlimited Company. The Respondent further highlighted that when the Complainant previously referred a complaint to the WRC, ADJ 13212, which was subsequently referred to the Labour Court on appeal, TUD191, she was aware that her employer was Melcorpo Commercial Properties Unlimited Company and not the Respondent.

In addition, I was also furnished with documentation from the Revenue Commissioners by the Complainant’s representative, Mr Paul Egan, dated 23 September 2019, which showed that she was not paid by the Respondent after 1 January 2019 and demonstrated that Revenue deemed Melcorpo Commercial Properties Unlimited Company to be her employer on the date she issued notice of her resignation, namely 29 August 2019. Moreover, no evidence was presented by the Complainant to suggest that she was employed by anyone other than Melcorpo Commercial Properties Unlimited Company, on the date of termination of her employment, 14th October 2019.

Background:

Please refer to ADJ 26493

Summary of Complainant’s Case:

Please refer to ADJ 26493

Summary of Respondent’s Case:

Please refer to ADJ 26493

Findings and Conclusions:

CA-00033691-001 - CA-00033691-002:

Based on the evidence presented to me, as set out in ADJ 26493, I find that the Complainant was not employed by the Respondent on the date of her resignation.

CA-00033691-003 - CA-00033691-011:

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(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.

8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

In the instant case, it was not disputed that the transfer of undertakings took place on 1 September 2017. In accordance with section 41 set out above, I may only entertain a complaint referred to the WRC within six months of the alleged contravention, namely 29 February 2018 in respect of all of these complaints, or if due to reasonable cause, within twelve months of same, namely 31 August 2018.

As these complaints were not referred to the WRC on 30 December 2019 however, they are out of time.

Decision:

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 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00033691-001: