EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP628/2014
APPEAL(S) OF:
Robert Targalski -appellant
against
Stable Diet Limited -respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this appeal at Wexford on 27th October 2015
Representation:
Appellant: In person
Respondent: Mr. Michael McNamee B.L. instructed by DAS Group, Europa House, Harcourt Centre, Harcourt Street, Dublin 2
The appellant’s case:
The appellant’s evidence was that he commenced working with the respondent on 8th September 2011 and that his employment finished on 30th May 2014 by reason of redundancy. He said that he was a kitchen assistant in the canteen in Wexford County Council which was run by the respondent. His brother, CT, who was head chef there was his line manager. He initially earned €10 per hour for a 40 hour week and later agreed to a reduction to €9 per hour. He opened to the Tribunal a letter dated 1st May 2014 from the respondent wherein it was stated that the respondent was not renewing its contract with Wexford County Council and as a result the appellant would be redundant. The letter enclosed an RP50 and informed the appellant of his holiday entitlements of 12.6 days in respect of which the appellant said he was not paid in lieu of.
The appellant told the Tribunal that on the 19th May 2014 his brother informed him he was going to take over the canteen and that he, the appellant could continue to work there. The appellant said he commenced work with his brother on 3rd June 2014 at a salary of €9 per hour for a 39 hour week. The appellant said that other staff of the respondent were also working for his brother.
The appellant said he was entitled to the redundancy lump sum payment from the respondent.
In cross-examination it was put to the appellant that there was a transfer of undertakings and that all obligations and rights under his contract had transferred to his brother. The appellant said there was no transfer of undertakings between the respondent and his brother because his brother had no written contract with Wexford County Council and there was no guarantee that the contract would be given to his brother the next time.
The appellant agreed that he did not inform the respondent that he was going to work for his brother or that his brother was taking over but this was because he could not contact the respondent. He disputed that the respondent sought to discuss matters with him.
It was put to the appellant that there was no redundancy as his work continued without a break with his brother in the same place as before, on the same terms and that his entitlement regarding his accrued holidays of 12.6 days was from the date of the transfer of undertakings an obligation on his brother as transferee.
The respondent’s case:
The respondent’s evidence was that a decision had been made for economic reasons not to continue with the operation of the canteen in Wexford County Council. The Council were given three months’ notice of this decision. During that time up to the date of closure the respondent sought information from Wexford County Council as to what was to happen regarding the continuance of the canteen but was told that Wexford County Council were just going to close it. Accordingly, on 1st May 2014 the respondent wrote to the appellant informing him that he was redundant and furnishing him with an RP50.
However, the respondent became aware in early June that CT, the appellant’s brother and former head chef of the respondent was operating the canteen and was employing the appellant and other former staff of the respondent. It was the respondent’s position that this constituted a transfer of undertakings and accordingly the appellant was not redundant and all rights and obligations under his contract with the respondent had transferred to the appellant’s brother, the transferee. The respondent could not comply with regulation 8 of TUPE because it only became aware after the event of the transfer.
Determination:
Having considered the evidence adduced at the hearing and the submissions the Tribunal finds as follows:-
- That the contract to operate the franchise in Wexford County Council and almost all if not all the staff of the respondent located in the franchise transferred to CT the respondent’s former head chef. Accordingly there was a transfer of undertakings within the meaning of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 between the respondent and CT and all rights and obligations under the appellant’s contract transferred to the transferee CT including preservation of his service.
- That the respondent on the information available to him on 1st May 2014 believed the canteen was to close and as a result of the closure the appellant would be made redundant.
- That whereas the respondent informed the appellant he was being made redundant the appellant was not in fact or in law made redundant because the canteen did not close but rather there was a transfer of the franchise and the appellant as an employee of the transferor accepted before the transfer an offer by the transferee of employment without a break in his employment, in the same place and on terms which are the same or materially so as those of his employment with the respondent transferor – see section 20 of the Redundancy Payments Act 1967 as amended by section 6 of the Redundancy Payments Act 1971.
Accordingly, the claim under the Redundancy Payments Acts 1967-2007 fails.
In circumstances where there was no claim under the Organisation of Working Time Act 1997 before the Tribunal, the Tribunal has no jurisdiction to make a determination regarding the appellant’s holidays save to say that any obligations regarding accrued holidays became from the date of the transfer obligations of the transferee.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)