ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049926

Parties:

Complaint:

Date of Adjudication Hearing:  17/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014   following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant seeks statutory redundancy payment.

Summary of Complainant’s Case:

The Complainant stated that her employment with the Respondent ended with only 2 days’ notice when he informed staff that another individual would be taking over the shop.  She refuted the Respondent’s claim that this was a transfer of undertakings, as she received a completely new contract of employment.  This contained a probationary period, a new rate of pay and more hours.

Summary of Respondent’s Case:

The Respondent stated that this was a transfer of undertakings.  The shop was closed for a number of days and then transferred into the name of RP.  He submits that the staff were informed of the transfer one month before it took place.  He stated that the Complainant was paid her wages from the beginning, and this was not a redundancy.

Findings and Conclusions:

There is no complaint before me under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  The matter was referred under the Redundancy Payments Act 1967. 

Section 7(2) of the Redundancy Payments Acts provides:

“(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..

In this instant case, the Respondent decided to leave the business and ceased to carry on the business.  The Respondent relies on the fact that the business was taken over by another individual sole trader in his argument that there was no redundancy.

Section 9 (3) (a) of the Act provides:

An employee shall not be taken for the purposes of this Part as having been dismissed by his employee if –

• (i) He is engaged by another employer (hereafter 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 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.

In this instant case, the Employer (Respondent) did not offer the Complainant to renew her contract or to re-engage her under a new contract of employment.  He stated that he transferred over her employment to the new owner of the shop.   There is no evidence that as provided for in Section (9) (3) (a) (ii) that the re-engagement took place with the agreement of the employee, the previous employer and the new employer.

 Other provisions of Section (9) (3) (a) of the Act, such as “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” (specifying continuity of service) were not applied in the Complainant’s case.

I find that the Complainant is therefore entitled to a statutory redundancy payment.  

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

 I have decided that the Complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement:     18 October 2018

Date of Termination:              7 August 2023

Gross Weekly Pay:                   €500.50

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Dated:   02-07-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: