Complainant

Respondent

Parties

David  Byrne

Jayden & Preston Ltd t/a Parcel King

Complainant

Respondent

Anonymised Parties

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Representatives

Peter Dunlea Peninsula

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-00059786-001

02/11/2023

The complainant submits that he was made redundant and did not receive redundancy payment. The respondent submits that the complainant left the organization, does not have the requisite service and a redundancy did not exist.

The complainant submitted that the correct legal name of the respondent was Jayden & Preston Ltd as identified on the manual complaint form.

The complainant gave evidence that he originally started work with company A on 20/12/2012 which was then taken over by Company B around 2017 and then in April 2023 this company was taken over by the respondent approximately 15/04/2023.  The complainant submitted that his role was a truck driver and that when the respondent took over the Company B he was issued a contract but would not sign it as it said that his previous service would not be recognised.  The complainant said there were difficulties as wages not paid on time and that the respondent changed to a system of a diesel card which often did not work.  He said that he had been informed by Mr X, Director of Company B that Mr Ikwukeme’s company was taking over the business and that the complainant would transfer to the new company and that everything would continue as normal.  He said it was the same customers, same business, same route. 

On 25/08/2023 a manager came out to the yard and said there was problems.  The complainant was out sick on 28th and 29th August 2023 and got a call to say the respondent was out of business and when he turned up on 30/08/2023 at the premises everything was locked up.  He was told that the owner of the yard had locked up everything.  He said he was one of many others who found they had no work.  He said that Mr Ikwukeme was out of the country when this event of August 2023 happened.

Under cross examination Mr Byrne said he believe that Mr Ikwukeme had terminated the employment of one of the managers at the end of July 2023.  He said that any pallets he loaded was delivered to customers and that the last date that he worked was 25/08/2023.  He said that the yard was closed because people were owed money and the yard owner took back the yard.  He believed that Mr X had been involved with Company B. and that the complainant took up employment 2 weeks after he left the respondent.  He said that many people were left without their jobs and had families to support and that people were upset that they had no jobs.

The respondent confirmed that Jayden & Preston Ltd was the respondent’s name as identified on the manual complaint form.  The complaint was denied by the respondent.  The complainant began employment with the respondent on the 15/04/2023 when the respondent acquired some of the assets and customers of Company B. The respondent did not receive the previous contract of employment of the complainant.  On or around the 18th of August 2023, an employee of the respondent was alerted to missing goods by a client of the respondent and as a result, an employee of the respondent, Mr Y and Mr Z, the owner of a neighbouring property, checked the security tape. An individual identified as the complainant and another employee were seen loading the missing goods onto a van by the two employees.

As Mr Emeke Ikwukeme, a director of the respondent, was abroad at this time, no contact with the complainant was made regarding this issue at that time. At this point it is understood another, employee became aware of the matter and informed the complainant on or around the 19th of August. From this date, the complainant ceased to present for work and all attempts to contact the complainant failed from this point on. On or around the 25th of August, the respondent became aware the complainant took up alternative employment.  The respondent’s attempts to contact the complainant became difficult from the 25th of August due to operational difficulties.  The complainant was never dismissed and was not made redundant and was only employed for 5 months with the respondent.

The respondent submitted that the complainant did not have appropriate service as he commenced employment on 15th April 2023 and denied that there was a transfer of undertakings and submitted that there is no documentation to support that a transfer of undertakings existed.  It was submitted that while customers from Company B were taken over, Company C had introduced new vans and trucks and that it was not a transfer of undertakings.

The evidence of Mr Ikwukeme was that he came to Ireland from Nigeria where he had been very successful until he bought Company B, that he believes now was operating fraudulently and that he was sold customers and brought a new lease of life to the company and that he realised too late what was happening.  He was told that cctv showed the complainant taking property and then the complainant did not turn up for work after that date.  He said that the person who looked after security was threatened and then left and that it was the workers who shut the place down.  He said that the complainant was not made redundant and that his business was taken from him.  He said that Mr X did not tell him the true financial situation with the company and that some employees left immediately and that others stayed on and that Mr X remained involved as a consultant until August 2023.  He said that the matters were reported to the Gardaí and he was advised to leave the town for his own safety and that the operation in Sligo ceased on 25/08/2023 but that the company continues to trade.

There was no cross examination of the witness.

There was significant conflict of evidence between the witnesses.  The complainant submits that he commenced employment 20/12/2012 with Company A which was taken over in 2017 by Company B and then taken over by Company C (the respondent) in 2023 and that the work, the customers and nature of the job remained the same.  The respondent submits that he took over some customers in 2023 from Company B but that there was no transfer of undertakings and that he brought his own fleet of trucks and vans to operate the business and the complainant only worked with him for 5 months. 

Preliminary Issue #1

I note that on the complaint form the complainant had identified Jayden & Preston Ltd as the respondent and identified further on the in the claim form the trading name as the respondent.  The respondent confirmed that Jayden & Preston Ltd is the respondent’s name and did not object to amendment of respondent’s name.   As the respondent were not prejudiced by this request and taking note that the complaint form is not a statutory form the respondent’s name is amended.

Preliminary Issue #2

The complainant submits that a transfer of undertakings occurred which the respondent denies.  While I note that this is not a complaint under the Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003), the respondent have submitted that they have no responsibility under this legislation.

Directive 2001/23/EC (‘the Directive’), transposed into domestic law by the Regulations, includes

“The transferor’s rights and obligations arising from a contact of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee”.

It further includes an optional provision which permits a Member State to derogate from the strict terms of the first paragraph of Article 3(1) as follows:

“Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.”

The Irish State did not transpose into domestic legislation this optional provision in relation to joint and several liability. This was dealt with in significant detail in TUD183J Donoghue Beverages Limited V Elizabeth Collins by the Labour Court who set out that following a transfer of undertakings within the meaning of the Regulations, the liability for the “transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer” rest with the transferee. 

It is not disputed that the respondent engaged with Company B and agreement was reached with Company B with regards taking over customers of Company B.  It is not disputed that vehicles of Company C serve the catchment area previously operated by Company B, with the same customers base as Company B and that while some employees left Company B, others stayed on with the respondent including the complainant.  It was also not disputed the Company C continued to operate in the same yard as Company B and that some vehicles remained and others were replaced and it was not disputed that the complainant was given a new contract of employment by the respondent to do the work that he did with Company B, with no break in service and refused to sign this new contract of employment as this contract detailed that no previous employment counted. It is clear that that the core business previously conducted by Company B was now being continued by the respondent and that assets were transferred, and that company B was the transferor and Company C the transferee and liability for the “transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer” rest with the transferee, namely the respondent. 

Substantive Issue

Length of service with Company A and Company B was not in dispute and having established that the respondent is therefore the transferee, and that the complainant has length of service from 20/12/2012, I will next examine whether the complainant’s position was made redundant.  It was not disputed by Mr Ikwukeme and the complainant that operations ceased in Sligo on 25/08/2023.  Whatever was the reason for this has clearly caused upset to both the complainant and Mr Ikwukeme and indeed Mr Ikwukeme gave evidence of how he was advised to stay away from Sligo owing to alleged threats.  While there was a dispute in the evidence regarding whether the complainant attended work on 30/08/2023 or whether he stayed away because of allegations Mr Ikwukeme made regarding cctv evidence, it is clear that both witnesses agreed that the business in Sligo ceased on 25/08/2023 and I find that the complainant’s employment ended owing to his position being made redundant.  Taking into consideration all the evidence and submissions I find that the complainant’s position was made redundant.

The complainant submits that he did not receive redundancy payment and the respondent submits that the complainant did not have the requisite service required for any redundancy payment and that there were not continuing of service from previous employments. 

Taking into consideration all the submissions and evidence, I find that the complainant’s position was made redundant and I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:

Date of Commencement:                          20/12/2012

Date of Termination:                                   25/08/2023

Gross Weekly Pay:                                       €700

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

Taking into consideration all the submissions and evidence, I find that the complainant’s position was made redundant and I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:

Date of Commencement:                          20/12/2012

Date of Termination:                                   25/08/2023

Gross Weekly Pay:                                       €700

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

Redundancy, transfer of undertakings,