Complainant

Respondent

Parties

Mandy  Smyth

Coras Mini Market Grocery Shop

Representatives

  Self-represented

 Majella Crennan, Solicitor

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-00061300-001

30/01/2024

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 and respondent undertook to give their evidence under affirmation.

The complainant stated that her employment with the respondent ended with about only 2 days’ notice when he informed staff that another individual would be taking over the shop.  She stated in evidence that the meeting was only a 2 second conversation.  They then received new contracts, which contained a probationary period, a new rate of pay and different hours.

In advance of the hearing, the respondent made the following written submissions:

The complainant was an employee of the business.  On 23 August the business was transferred as a going concern to a sole trader.  However, the employees of the business transferred with the same terms and conditions of their employment but their employer going forward would be different.  There have been no changes to the complainant’s role as there was no termination to her employment.  A month prior to the effective date of transfer, a meeting was held with all the employees, the purpose of this meeting was to explain that there would be no changes to their terms of employment and that the new owner would be taking over the business

Although the complaint submitted under Section 39, states that the employee was made redundant on 8th August 2023 however the complainant remained and continues to remain employed by the business save that her new employer is different and in line with TUPE regulations there has been no breach with her recognition of service and her transfer was under the same terms and conditions.

The complainant did not refuse or object to the transfer under TUPE nor to being an employee under the same terms for the new employer and accordingly no redundancy has arisen.

The respondent stated that the complainant was paid her wages from the beginning, and this was not a redundancy.

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 relies on the fact that the business was taken over by another individual, sole trader.  In his argument that there was no redundancy as the transfer falls under the definition of a Transfer of Undertakings.  In support of this contention, copies of the paperwork referring to the transfer of the commercial lease were provided. 

Section 9(3) of the Act states as follows:

(a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if—

(i) he is re-engaged by another employer (hereinafter 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 and the new 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.

(b) Where in accordance with this subsection an employee is re-engaged by the new employer, the service of that employee with the previous employer shall for the purposes of this Act be deemed to be service with the new employer.

In this case, the 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.   Although copies of the paperwork relating to the transfer of the commercial lease were submitted, these do not in themselves indicate the existence of a Transfer of Undertakings, particularly when a new contract of employment, which includes a new rate of payment, probation period and hours of work are taken into account.

The provision of Section (9)(3)(a)(iii) of the Act, is worded as follows: “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” does not seem to have been complied with.  I find that the existence of a Transfer of Undertaking has not been established.  In the circumstances, I find that change of employment cannot be considered to have fallen under the definition of a Transfer of Undertakings and I find that the complainant is entitled to a statutory redundancy payment.  

Having regard to all the written and oral evidence presented to me, my decision is that the complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement:     7 July 2017

Date of Termination:              7 August 2023

Gross Weekly Pay:                   €456.00

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

Redundancy Payment Act – no Transfer of Undertaking established – entitlement to redundancy established