Complainant

Respondent

Parties

Monika  Pajkert

Blackwell And Wright Senior Care Limited trading as Home Instead Senior Care

Representatives

Joanna Kwiatkowska Consultant

Gina Cassidy 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-00051487-001

01/07/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under oath while a witness for the respondent (the General Manager) gave his evidence under affirmation.

An interpreter was provided by the WRC who took the Interpreters affirmation at the start of the hearing.

The complainant submitted that she was working with the respondent and that the workplace was in a patient's home. She stated that that she was informed in December 2021 that the contract to provide patient care would come to an end in February 2022.

She indicated that she was told that there was no other work for the staff to do and that they would have to apply for the to the new service provider for employment.  The complainant submitted that she applied for new employment and was interviewed, she had to undergo new Garda vetting and ultimately, all her terms of employment were changed. There was no permanent contract.

The complainant stated that she got a job with the new service provider and asked her former employer for a redundancy payment, but this was refused.  The former employer refused to give a redundancy payment on the basis that the change in employment was a transfer of undertakings. She noted that the new employer denied that it was a transfer of undertakings and that no transfer has been established

The respondent submitted that the work revolved around a contract of care for a specific individual who required a nurse and caregiver 24 hours of the day. The respondent submitted that there was a transfer of this contract of care and that the 17 staff servicing this client contract moved to the new service provider. It was submitted that this was a life-or-death situation for the client if they had no access to specialist care.

The general manager gave evidence that the respondent met with all staff on the 30th of November 2021 and informed them that they were engaging in a transfer of undertakings process. He stated that it was indicated to them that they would hold on to them for a little longer to complete the process.  He stated that he advised the staff on the 1st of February 2022 that the transfer would take effect on the 28th of February. He stated that the respondent acted as reasonably as they could.

Under cross examination the witness confirmed but they had 135 employees and 15 head office staff including one active nurse. He noted that they had engaged in consultation with the staff and engaged in consultation with the new service provider and that all of the staff moved over with the contract to the new service provider.

The complainant stated that no Transfer of Undertakings took place.  She indicated that she had to apply afresh to her new employer in order to continue the work that she had been undertaking previously.  She explained that there was a new Garda vetting process and that her terms and conditions of employment were not the same as previously in place with the respondent. On the basis of this she submitted that no transfer of undertakings took place and that she was entitled to a redundancy payment from the respondent and sought to appeal her former employer’s decision.

The witness for the respondent stated that it notified its staff that a Transfer of Undertakings was to take place.  He stated that the respondent engaged with the new service provider regarding that transfer of undertakings and that the contract in its entirety transferred to the new service provider. He indicated that he notified the staff on the 1st of February that a transfer of undertakings would take effect at the end of the month. The respondent submitted that all of the staff were moving across to the new service provider and that in this case the service was purely a caring one and that although no equipment or tangible assets were transferring across, other than the entirety of the staff who provided care, that this was a transfer of undertakings in accordance with the legislation.

Section 20(5A) of the Redundancy Payment Act, 1967 states that

(5A) In a case mentioned in subsection (1) (a), the new owner shall be estopped from denying that an employee was in continuous employment (within the meaning of Schedule 3) unless, within 26 weeks of the change of ownership, he notifies the employee of his intention so to deny.

No evidence of the receipt of a Section 20(5A) notification was submitted by the complainant. 

Having considered the submissions of both sides, I am satisfied that although the new employer went through the procedure of interview and new vetting, no notification under section 20(5A) took place.  Accordingly, a Transfer of Undertakings has taken place in relation to the provision of services to the patient who was central to the service contract.  The position outlined relates to an economic entity which has transferred while retaining its identity.  I find that as a transfer of undertakings has been effected, the complainant is not entitled to redundancy payment as she has not been made redundant in accordance with Section 20(5A) of the Act. Her employment transferred over to the new service provider with the effect from 28 February 2022.

Having regard to all the written and oral submissions made in relation to this complaint, my decision is that the complainant has not established that she was made redundant or that she has an entitlement to a payment under the Redundancy Payments Act.  Accordingly, I disallow the complainant’s appeal.

Redundancy Payment Act – Transfer of Undertakings – redundancy not established – entitlement to a redundancy payment not established – appeal disallowed