UDD2236

FULL RECOMMENDATION

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

MR CHRIS CARROLL
(REPRESENTED BY CLAIRE BRUTON B.L., INSTRUCTED BY ANNE O’CONNELL SOLICITORS)

- AND -

PATRICIA YOUNG
(REPRESENTED BY FIONA CAMPBELL)

DIVISION :

SUBJECT:

1. Appeal Of Adjudication Officer Decision No. ADJ-00023574, CA-00028893-003, CA-00028893-004

BACKGROUND:

2. The Employer and the Worker both appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 25^th May 2022. The following is the Determination of the Court:-


DETERMINATION :

Background to the Appeal

This is an appeal on behalf of Mr Chris Carroll (‘the Respondent’) and a cross-appeal by Ms Patricia Young (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00023574/CA-00028893-003, dated 21 May 2020) under the Unfair Dismissals Act 1977 (‘the Act’).

The Court heard the within appeal in Dublin on 25 May 2022 in conjunction with a related appeal and cross-appeal from a second decision of the same Adjudication Officer (ADJ-00023574/CA-00028893-004, also dated 21 May 2020) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’). The Court’s determination in the latter appeal bears reference number TU/20/25. For reasons that will become obvious, both determinations of the Court should be read together.

At first instance, the Adjudication Officer held that both complaints were well-founded. She awarded redress (by way of reinstatement) under the 1977 Act only. The Complainant’s appeal is confined to the matter of the form of redress only.

The Factual Matrix

The Complainant was employed as an assistant in the local post office in Kiltimagh, County Mayo, by Ms Marion Dunne for some twenty-one years until Ms Dunne ceased trading on Friday, 12 April 2019. The Respondent opened a post office in a dedicated area within a Londis store he runs with members of his family on Monday, 15 April 2019.

The Londis store is located approximately one hundred metres from the premises in which Ms Dunne had operated her post office business, on the same street. The Complainant was on long term sick leave from her employment with Ms Dunne in the period immediately prior to the cessation of Ms Dunne’s business as she was recuperating from an accident in which she badly damaged her femur. However, she was – she says – contracted to work two days per week at that time and her agreed weekly rate of pay was €175.00 per week. She had previously worked a three-day week for Ms Dunne.

The Complainant’s employment ceased on Ms Dunne’s last trading day, 12 April 2019. The Complainant did not receive any notice period or payment in lieu of notice from Ms Dunne as the latter was of the view that the Complainant’s employment would transfer to the Respondent pursuant to the Regulations. Likewise, the Complainant did not receive payment from Ms Dunne for her accrued annual leave of eight days or for six public holidays outstanding to her.

Written Submissions of the Parties

The Complainant submitted that she had been assured by Ms Dunne that there would be a transfer or her employment to the Respondent’s business. She also told the Court that she had had one meeting with the Respondent.

That meeting took place on the morning of 12 April 2019 when Mr Carroll, on his own initiative, called to the Complainant’s home and advised her that he would not be employing her as his understanding was that there would be no transfer of undertaking from Ms Dunne’s business to his.

The Complainant gave sworn evidence that she neither sought nor gained alternative employment since Ms Dunne’s business ceased. She was, as stated previously, recovering from an accident at that time. Unfortunately, she endured a second serious accident some time after that. She was in receipt of illness benefit for a period of approximately fifteen months and thereafter she was in receipt of disability benefit and remains so at present.

The Respondent denies that a transfer of undertakings within the meaning of the Regulations took place between Ms Marion Dunne and himself in April 2019, or at all. He further submits that it follows that the Complainant was never in his employment and nor can she be deemed to have been in his employment and that he, therefore, has no liability in respect of the termination of her employment under the Act or otherwise.

Discussion and Decision

The Court having determined in TU/20/25 that a transfer of undertakings did take place between Ms Dunne and the Respondent on 15 April 2019, finds that the within appeal by the Respondent fails. The Court, therefore, upholds the Adjudication Officer’s decision.

The Complainant has cross-appealed in relation to the remedy that the Adjudication Officer granted her. Having considered the totality of the evidence before it, the Court likewise upholds this aspect of the Adjudication Officer’s decision.

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.