RPD256

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044640 (CA-00055476-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 3 March 2024 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 21 January 2025.       

The following is the Decision of the Court.

DECISION:

This is an appeal by Emma Martin against the decision of an Adjudication Officer made under the Redundancy Payments Act 1967 (‘the Act’) against AJPC Retails Limited T/A Costcutter (now in liquidation).

The complaint under the Act was submitted to the Workplace Relations Commission on 9 March 2023. The Adjudication Officer did not uphold the complaint.

The parties are referred to in this Determination below as they were at first instance. Hence, Emma Martin is referred to as “the Complainant” and AJPC Retails Limited T/A Costcutter (now in liquidation) is referred to as “the Respondent”.  The appeal was heard on the same day as appeals made by three other Complainants against the same Respondent. 

Summary of the Complainant’s position

The Complainant gave evidence under oath. She first commenced employment with another operator on 24 May 2016 at the same premises and her employment transferred to AJPC Retails Limited T/A Costcutter in November 2021. She worked as an assistant manager.

On Wednesday 11 January 2023, she was advised by her former employer that the business was closing. She and four colleagues were given the option of closing the doors that evening or working until to the end of the month. They all opted to work to the end of the month.

The following Monday the shop did not open on due to staffing difficulties, as some staff were ill. She went to the premises on Tuesday to do the wages but could not gain access as the locks had been changed by the landlord.

On Wednesday evening she received a call from the new operator who told her that they were stepping in to take over the business and were taking on staff on a day one basis.  She attended a meeting with the new management the following day. As her service did not transfer to the new operator, the Complainant sought a statutory redundancy payment from her former employer based on service since 2016. She sent an RP77 sent to her former employer but did not receive a response.

Summary of Respondent’s Case:

Mr Donohoe submitted that there was no termination of the Complainant’s employment on 13 January 2023. The business was not in liquidation at that time.  The landlord attended the premises to take possession of the premises, and the locks were changed. Another operator took over the lease and the Complainant continued to be employed. In those circumstances, no entitlement to statutory redundancy arises.

The Relevant Law

Section 7 of the Redundancy Payment Act, 1967, sets out a general right to a redundancy payment as follows:

7.— (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(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, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Deliberation and findings

The Complainant submits that her employment was terminated by reason of redundancy on 20 January 2023, as she did not work for her former employer after that date. The Complainant commenced employment with a new operator on the same premises and was advised that the service she accrued with her former employer did not transfer to the new operator.

The Complainant seeks payment of a statutory redundancy payment based on her service from 24 May 2016 until her employment with her former employer ceased on 20 January 2023.

The new operator of the forecourt service was not a party to these proceedings.

From the submissions made and undisputed testimony proffered, the Court finds as follows:

• The Complainant was given verbal notice on 13 January 2023 that her former employer planned to cease operating the business where she worked at the end of January 2023.
• She was given the option to cease working on that date but opted to remain working for her former employer until the end of the month.
• The business continued trading, albeit with difficulties. The shop could not open on Monday 16 January 2023 due to staffing issues.
• On Tuesday 17 January 2023 the Assistant manager discovered that the locks to the premises had been changed.
• A new entity took over the lease on the premises. It is accepted that the business operated on the premises by the new entity was the same core business as operated by the Complainant’s former employer, i.e., a forecourt, shop and deli.
• The Complainant attended a meeting with new operator on Thursday 19 January 2023.
• The Complainant entered into a contract of employment with the new operator and was informed that employment was on a day one basis with no transfer of service. Her first day of work with the new operator was 23 January 2023.

The Complainant seeks a redundant payment under the Act in circumstances where she was advised by one entity that the other entity has liability for her prior service.

S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides, in relevant part, as follows:

3. (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

Subject to this Regulation, in these Regulations -

(2) “transfer” means the transfer of an economic entity which retains its identity;

“economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.

            ….

4.(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

Having regard to the uncontested facts presented in this case, it is clear that the Complainant’s employment with her former employer was not terminated on 13 January 2023.  She remained in the employment of her former employer after that date. In fact, her employment was never formally terminated by her former employer.

The Court heard that the landlord took possession of the premises and by Tuesday 17 January 2023 the locks were changed. Thereafter, another operator took over the premises. It was not disputed that the Complainant was an employee of her former employer when the lease was reassigned to the new entity that took over operating the same core business at the premises.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 specifically provide for the reassignment of a lease to be regarded as a transfer.  

Having regard to the facts as presented, the Court finds that the Complainant’s employment was not terminated by her former employer by reason of redundancy. In such circumstances, there is no liability on the part of the Respondent to pay a statutory redundancy payment to the Complainant in this case.

Having regard to the above, it follows that the Complainant’s complaint regarding a contravention of the 1967 Act is not well-founded.

The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
CC	______________________
7th March 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.