ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020771
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 18/06/2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant was employed as a bar worker by the respondent who operated a licensed trade business. The complainant commenced employment with the respondent on 6 July 2005 and was working 17 hours per week when the business closed. The claims arise from the closure of the business.
Summary of Complainant’s Case:
The original company who was the employer ceased trading on 3 April 2017. A Director of that company reopened the premises three days later and the complainant resumed employment on the same employment terms and conditions.
The respondent ceased trading on 15 February 2019 and the complainant did not receive any redundancy payment or payment in lieu of notice.
The liquidator of the original company stated that no redundancy arose in 2017 because there was a Transfer of Undertaking at that time.
Summary of Respondent’s Case:
The original company went into liquidation in April 2017.
P45 forms in respect of the employees were completed but were not given to the employees.
The complainant commenced employment with the respondent on 8 April 2017.
The respondent followed the professional advice received from their solicitor and accountant.
The present business ceased trading in February 2019. Funds are not available to pay creditors.
Findings and Conclusions:
The complainant commenced working on a part-time basis in the licensed premises operated by a limited company in July 2005. In April 2017 the company ceased trading on or about 3 April. Some days later the pub reopened with one of the directors of the limited company now operating it as a sole trader. The complainant resumed employment on the same terms and conditions as applied heretofore. A creditors’ meeting regarding the limited company was held on the 19 April 2017 and the creditors appointed a liquidator to the company. The respondent’s representative stated that it was a voluntary liquidation.
It appears that there was no contact between the liquidator and the complainant at that time. According to the representative of the respondent, who was a manager in the business, P45 forms were prepared for the employees at that time giving a date of cessation of employment of 3 April 2017 but the representative accepted that these were never issued to the employees concerned.
In 2019 trading difficulties caused the business to cease trading on 15 February. A letter was issued by the respondent to employees as follows:
To Whom It May Concern
Dear Sir / Madam,
I wish to advise that the (name of licensed premises) ceased trading on Friday 15th February 2019 and is now closed. It is with great regret that we have had to let all staff go and Revenue Commissioners have been advised accordingly
We have paid (complainant) to date and should she receive any payment after this, it will be from the Social Insurance Fund for time in lieu of notice, holiday pay and redundancy.
I trust this is satisfactory.
The issue of calculation of entitlements, particularly those pertaining to redundancy, then arose and according to the respondent’s submission the manager enquired of the staff if the liquidator had ever advised them of their entitlements in this regard and was told that this had not happened. The complainant then wrote to the liquidator on 10 March 2019 requesting clarification as to whether there was a redundancy situation arising from the liquidation in April 2017. The liquidator replied as follows:
I was appointed Liquidator of (the Company) on 19th April 2017.
My understanding is that the employees of the Company took up employment, within the new business operating the public house, within days of the Company ceasing to trade. Employees pay, conditions and roles remained exactly the same as they had been with the company.
That scenario would indicate that a transfer of undertakings took place. It should also be noted that there are no employee claims on the director’s Statement of Affairs, which is a further indication that employees have been transferred to the new business. Indeed, if the directors are not accepting this, they should have included employee claims on their Statement of Affairs of the Company.
I note that the transfer of employment took place on or about 6 April 2017 which was prior to the appointment of a liquidator and that it was a voluntary liquidation. I note that other staff transferred at the same time and that the new employer was in the same premises utilising the same equipment, fixtures and fittings. In Blayney v Vanguard Plastics Ireland Ltd. ((2002), 13 E.L.R. 193) it was determined that TUPE applied where the company selling the business went into voluntary liquidation by means of a creditors’ voluntary liquidation. Having regard to all the circumstances therefore I am satisfied that the complainant’s employment transferred to the respondent in April 2017 as per the Transfer of Undertaking Regulations.
Section 7(2) of the Redundancy Payments Act, 1967, states:
For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –
(a) the fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or
(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish…
I find that the respondent ceased to carry on the business where the complainant was employed with effect from 15 February 2019 and that as a result the complainant’s employment ceased. The complainant was accordingly dismissed by reason of redundancy. It is also clear from the evidence that the complainant did not receive any notice of this cessation of employment nor any payment in lieu of notice.
Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:
(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –
if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks.
I find therefore that the complainant is entitled to receive six weeks’ pay in lieu of notice.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Complaint No. CA-00027393-001:
This is a complaint under the Redundancy Payments Acts, 1967 – 2012. Based on the evidence before me I find that the complainant was in employment from 6 July 2005 and that on 6 April 2017 her employment transferred under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, to the respondent. I find that the complainant’s employment terminated on 15 February 2019 by reason of redundancy.
I therefore find that the complaint under the Redundancy Payments Acts, 1967 – 2012, is well founded and that the complainant is entitled to a redundancy payment based on the following criteria:
Date of Commencement: 6 July 2005
Date of Termination: 15 February 2019
Gross Weekly Pay: €195.40
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Complaint No. CA-00027393-002:
This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1,172.40 (€195.40 x 6) as compensation in this regard.
Dated: 9th August 2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly