EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Pawel Perlinski, - appellant
Subulter Foods Limited - respondent
Adrian Sheehan T/A Subulter Foods Limited - respondent
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. S. McNally
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this appeal in Cork on 27 February 2014 and 29 April 2014.
Appellant: Mr. Patrick Horan, Joseph S. Cuddigan & Co, Solicitors,
30-31 Washington Street, Cork
Respondent: Ms Aoife McCarthy, Kieran McCarthy & Co, Solicitors,
Floor 3b, Lapps Quay, Cork
The decision of the Tribunal was as follows:-
AS was company director of the respondent company. The company operated as a bakery and was incorporated in mid June 2000. It sold bread, cakes and confectionary to various outlets. In the initial years the business went well and AS employed approximately six staff. The appellant was employed as a baker. The company encountered financial difficulties in the period 2008/2009 and AS suffered a family bereavement around this time also. In 2010 employees were reduced to three. In November 2010 the respondent company became insolvent and was dissolved. AS continued to operate the bakery until November 2011.
AS purchased ingredients from CC who owned company P, also a bakery. In around mid/late October 2011 following discussions with CC an agreement was reached verbally whereby AS sold on his assets and goodwill to CC. AS was paid €3,000.00 for machinery. CC agreed to employ AS and his employees as part of a transfer. However, this was not formally documented by either party. At this time AS spoke to employees T, D and the appellant and informed them of the financial difficulty of the company and notified them of the transfer. They were all happy to transfer to the new company. However, the appellant expressed concern about the long distance he would have to travel to the new premises as he did not drive. AS agreed to drive the appellant to work each day. AS agreed with CC that the appellant would be paid €120.00 per shift. The manager of the company P subsequently reduced the appellant’s wages to €100.00 per shift.
In early November 2011 AS and T went to company P’s premises to set up the process for making bread while the appellant continued working in the respondent’s premises for approximately two weeks. The appellant then commenced employment in company P.
AS was instructed to issue the appellant with a P45 on 25th November 2011 so as to assist the appellant with his new employment.
The appellant commenced employment on 1st September 2005 and was employed as a baker. He reported to AS who was Director of the respondent company. In the initial years he enjoyed a good working relationship with AS. In around late October 2011 AS told him that he would be working in company P’s premises. The appellant could not recall when he commenced working in company P. AS agreed to drive him to work for the first few weeks and then the appellant’s wife drove him to work after that. His shift commenced at 4 pm each day. At no stage had the appellant been told that he was being transferred to company P.
While the appellant worked for a few weeks in November 2011 in the premises of company P it was still his understanding that he was employed by AS and worked for the respondent company.
On 25th November 2011 AS visited his house and handed him his P45. He understood his employment ended that day. The next day his wife drove him to company P. He spoke to both CC and PW and he was offered a job.
CC gave evidence that he was the owner of company P. He had sold ingredients to AS. AS baked bread in his own company’s premises. CC met AS on two occasions to discuss prices of bread he had agreed to sell on to AS as a customer. AS then sold on this bread to his existing customers.
CC did not buy AS’s business. There was no transfer of undertaking. Due to the increase in volume of work in company P to bake bread for AS, CC agreed to engage both AS and the appellant to work for the bakery. Bakers are usually paid €100.00 per shift. Both AS and the appellant commenced employment with company P on 7 November 2011. CC had no knowledge of the appellant being issued with a P45.
The appellant broke his service with company P for a three month period – September to December 2012 and recommenced working for company P some time thereafter and was issued with a contract of employment. The appellant is still employed by company P.
The Tribunal carefully considered the evidence adduced during the course of the hearing. It is clear that there is a conflict of evidence between the parties. The Tribunal is not satisfied that a transfer of undertaking had taken place. Evidence was given that the appellant accepted a role in company P on 7th November 2011.
The Tribunal is satisfied that the appellant was not made redundant from the respondent company but left his employment of his own volition to take up a new position in company P. The appeal under the Redundancy Payments Acts, 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal