EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Rima Striuogaitiene -appellant
Noonan Services Group Limited -respondent
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O’Carroll- Kelly B.L.
Members: Mr. L. Tobin
Ms. P. Ni Sheaghdha
heard this appeal at Dublin on 19th August 2014
Appellant: Ms. Dalia Busejeva, Apt 1 Riverview Apartments,
Dublin Road, Celbridge, Co. Kildare
Respondent: Mr John Barry, Management Support Services, The Courtyard,
Hill Street, Dublin 1
The appellant’s employment transferred to the respondent company in 2008. The appellant was employed by the respondent company as a contract cleaner and was based on one client site. However, the client decided to bring the contract in-house and insisted that the transfer of undertakings legislation did not apply to this situation. Consequently, the client would not accept the employees working on the contract. The respondent company disputed this with the client but the client maintained their position. It was the respondent’s position that had the appellants transferred then some of the client’s staff with shorter service may have been selected for redundancy. The situation was an attempt on behalf of the client to avoid the obligation of having to select staff fairly for redundancy and was also a cost-saving measure. Further submissions and case law was submitted to the Tribunal on this issue.
It was the appellant’s case that she has entitled to a redundancy payment as her employment had not transferred to the client.
S. 7(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 states:-
“Where an undertaking, business or part of an undertaking or business the subject of a transfer, preserves its autonomy after the transfer, the status and function of the representatives or of the representation of the employees affected by the transfer shall be preserved by the transferee concerned on the same terms and subject to the same conditions as existed before the date of the transfer as specified in any enactment, or in any agreement between the employer and the employees' representatives.”
In the circumstances of this case the client ceased the contract with the respondent company and that business did not transfer to any other entity, it was merely brought in-house.
Mr. Justice Morrison stated in ECM –v- Cox  IRIR 416:-
“The Directive does not aim to protect employees from the chill wind of redundancy, it does seek to protect them when the business to which they were dedicated has been transferred and a new employer has come on the scene”.
However, the case herein is differentiated from ECM case by virtue of the fact that no new employer was within the case before the Tribunal.
Accordingly, the Tribunal finds that the appellant is entitled to a payment under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:
Date of Birth:
Date of Commencement: 13 October 2010
Date of Termination: 16 July 2013
Gross Weekly Pay: €253.10
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal