EMPLOYMENT APPEALS TRIBUNAL
Eamonn Phelan T/A Phelan Distribution
Martin Murphy, Mrt Cargo
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr T. O'Grady
Mr J. Jordan
heard this appeal at Dublin on 29th January 2016 and 20th October 2016
Appellant(s) : Ms. Anna Murphy, O'Reilly Thomas, Solicitors, 8 North Quay, Drogheda, Co Louth
Respondent(1) : In person
Respondent(2) : Maguire McErlean, Solicitors, 78-80 Upper Drumcondra Road, Dublin 9
Respondent(1) raised a preliminary issue regarding a Transfer of Undertaking.
Respondent(1) gave evidence of operating the family business which delivered a national newspaper ,paper(1), to ‘special’ clients. He operated from a list that the company had built up over a period of more than 30 years and considered it a ‘valuable asset’ as he believed that while the newspaper knew the quantity of the orders, they did not know the full destination of said order. He was the ‘go to man’ and made direct representations to people looking for paper (1) in Dublin. In February 2014 he willingly sent an email containing the list to, AH, paper(1). The following July he was informed that he had lost the role as the company had found somebody else to do it at a more competitive price. The respondent(1) informed the claimant and issued him with a P45. He assumed the list was given to respondent(2). In cross examination the respondent accepted that while he believed the list was given to respondent 2 he could not be sure if it was given in its entirety. He also accepted he did not inform the claimant of the transfer of Undertaking as he did not know who had taken over the role.
Respondent(2) gave evidence of distributing newspapers for another company, paper(2), for over 20 years. He had since added other newspapers to his distribution operation. In 2013 he was informed that paper(2) was taking over the printing duties of paper(1) and asked if he would be interested in operating a ‘synergy’. He was successful with his tender. In 2014 he was given a list of where to deliver. There was never any discussion regards taking on staff with the obtainment the list. He believed the list may have been from a city based distributor. As far as respondent(2) was concerned he had a specialised company and this new list was going to be absorbed into his operation as it was cheaper to operate that way. Respondent(2) had no knowledge of respondent(1) or the claimant and insisted there was no transfer of Undertaking on his part.
After examining all the evidence adduced The Tribunal is satisfied that there were no new employees employed by respondent(2) to do this job. The Tribunal is also satisfied that there was not sufficient economic entity transferred and therefore does not constitute a Transfer Of Undertaking for the purposes of the TUPE regulations.
The Tribunal is satisfied that a redundancy situation occurred and that the appellant is entitled to a redundancy lump sum payment from respondent(1) under the Redundancy Payments Acts, 1967 to 2007, based on the following information:
Date of Commencement: 07th February 2005
Date of Termination: 26 September 2014
Gross Weekly Pay: €432.00
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