Complainant

Respondent

Parties

Matthew  Dobbs

Pat Whelan & David Nolan

Representatives

Padge Reck

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-00047104-001

10/11/2021

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

CA-00047104-002

10/11/2021

The Complainant alleges he is entitled to a redundancy payment following the termination of his employment in April 2020. There is a conflict between the two Respondent’s as to which one of them, if any, are legally responsible for the redundancy payment.

The Complainant has a redundancy related complaint against, Mr. Whelan and Mr. Nolan. The Complainant previously filed the same complaint, ADJ 28735, against Mr. Whelan.  He states that his employment with Mr. Nolan was terminated on the 30th April 2020 by reason on redundancy. He accepts that his employment with Mr. Whelan ceased on the 4th February 2019 when he commenced working for David Nolan. He did exactly the same work for Mr. Nolan that he did for Mr. Whelan. He believes there was no break in service following his transfer to Mr. Nolan.

 Pat Whelan did employ the Complainant until 4th February 2019. On that date there was a transfer of undertaking to David Nolan. Thereafter, the Complainant was employed by David Nolan. His position with David Nolan was made redundancy on the 30th April 2020. Mr. Whelan, I those circumstances, is a stranger to the within proceedings.

Pat Whelan – took the oath and gave his evidence as follows:

His contract with UPS expired on 15th February 2019. Up to that point he employed the Complainant and the Co-Respondent herein, Mr. David Nolan. He approached UPS in October 2018 and told them that due to ill health he was going to retire. He spoke to David Nolan also about taking over the contract. Mr. Nolan thought about it for a while and said that he would be interested. He then went back to UPS to tell them that Mr. Nolan was interested in taking over the contract. They then entered negotiation and he ultimately got the contract and started to do the work for UPS. Mr. Whelan took all of the staff out and informed them of the situation and that the business had been transferred to David Nolan.

Mr. Whelan had six vans which he leased to David Nolan. Mr. Nolan taxed them, insured them etc. Mr. Whelan had carried out his business from a particular premises. He leased that premise to Mr Nolan after Mr. Nolan had secured the contract. Mr. Whelan finished up on a Friday and David Nolan started the following Monday.

David Nolan – took the affirmation and gave his evidence as follows:

Mr. Nolan did employ the Complainant from February 2019 to 30th April 2020. He spoke with Mr. Whelan back in October and Mr Whelan asked him if he would be interested in taking over the UPS business.  He said he would think about it and talk to her partner about it. When he had done that, he came back to Mr. Whelan and told him that he would be interested. He then had to apply for a contract with UPS. He was successful.  The staff who had worked with Mr. Whelan came to work for him. He leased the vans and the premises from Mr. Whelan and he paid him a monthly fee for that. He used his mobile number and his own email address in relation to the business. Despite that he does not accept that he is responsible the redundancy payment because he only employed him for 14 months and the business was his and was originally dependent upon him securing a contract. Up until February 2019 he was actually an employee of Mr. Whelan.

Having carefully considered the above matter I am satisfied that the Complainant was not employed by the Mr. Whelan herein on the 30th April 2020 when his position was made redundant. That was previously set out in decision ADJ 28735.  On that basis I find that that part of this complaint is not well founded and accordingly fails.

The issue I have to decide is whether of not Mr. Whelan’s business was transferred over to Mr. Nolan via a transfer of undertakings. I am satisfied that it did not. Once Mr. Whelan retired there wasn’t actually a business to transfer. The contract Mr. Whelan had in relation to UPS was specifically between himself and UPS. That essential was the business. Once that contract ended, the business ended with it. What Mr. Whelan did was to put in a good word for Mr. Nolan to help increase his chance of securing a contract with UPS. Thankfully he was successful. Mr. Whelan, post Mr Nolan winning the contract, retained ownership of the vans and the premises and he gave Mr Nolan use of them via separate leasing agreements. In those circumstances I find that no transfer of undertaking took place. The Complainant service ended with Mr. Whelan in February 2019 and a new and separate employment relation was entered into with Mr. Nolan thereafter. As the Complainant was only employed by Mr Nolan for 14 months, he does not have the required service to for a redundancy claim.

Therefore, the complaint against Mr. Nolan is not well founded and accordingly fails.

CA-00047104-001 The Complaint fails.

CA-00047104-002 The Complaint fails.