Complainant

Respondent

Parties

Christopher  Gurren

Future Pigs Limited

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00058800-001

11/09/2023

The Complainant commenced employment with the Respondent on 1st October 2018. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €690.00. The contract of employment came to an end on 27th January 2023.

On 11th September 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that he had been dismissed on the grounds of redundancy and that his former employer had failed to discharge the relevant payment in accordance with the legislation. A hearing in relation to this matter was initially convened for 20th September 2024, and was attended by both parties. On this date, the Managing Director of the Respondent verbally submitted that the Complainant was disentitled to a redundancy payment on the grounds of a purported transfer of undertaking to a new employer. Given that the Complainant was unaware of this submission prior to the hearing of the matter, and in circumstances whereby he was a lay litigant presented with a potentially complex set of legal principles, the matter was adjourned to allow the parties to exchange submissions on this point. While the Complainant issued a submission in relation to the factual element of this application, no responding submission was received from the Respondent.

A further hearing in relation to this matter was convened for, and finalized on, 4th February 2025. This hearing, and the earlier hearing, were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

There was no appearance by or on behalf of the Respondent at the resumed hearing. After allowing a period of time to elapse to account for potential lateness, the matter proceeded in their absence.

In evidence, the Complainant stated that he commenced employment with the Respondent on 1st October 2018. The business of the Respondent is livestock farming, with the Complainant’s role described as that of “maintenance technician”. The Complainant was a full-time permanent member of staff in in receipt of an average weekly payment of €690.00.

In evidence, the Complainant stated that he came into the Respondent’s employment following their assumption of the leasehold of the farm. As part of this engagement, the Complainant agreed that no previous employment was to count towards the duration of the present contract of employment.  

The Complainant worked in this manner for over five years, until 27th January 2023. In the months leading up to this date, the Respondent sold the existing stock on the farm. In evidence, the Complainant stated that towards the end of 2022 he simply had nothing to do, and he was concerned about his ongoing employment. On 27th January 2023, the Complainant’s status on revenue was amended, presumably by the Respondent, to indicate that the employment had ceased.

In the weeks following the Complainant’s apparent dismissal, he sought payment his statutory redundancy. By response, a representative of the Respondent stated that he could apply for redundancy or seek employment with any new leaseholders of the premises. The Complainant issued form RP77 seeking payment of redundancy but did not receive any response.

By post hearing submission, the Complainant denied that his employment was subject to a transfer of undertakings. He stated that the business of the Respondent had entirely ceased prior to any new leaseholder taking effect. He further submitted that there was a temporal gap between his former employer ceasing trading and a new leaseholder taking over. While he accepted that he now worked for the new leaseholder, he submitted that his role in the new leasehold is substantially different and that he is subject to an entirely different management structure. Finally, in answer to a question posed by the Adjudicator during the resumed hearing, the Complainant stated that he received no correspondence from either his former or his new employer in relation to any proposed transfer of undertakings.  

As set out above, while the Respondent attended the first hearing of this matter, they did not attend on the resumed date.

Having reviewed the file, it is apparent that the Respondent was on notice of the time, date and venue of the hearing. In circumstances whereby the Respondent did not apply for an adjournment in advance of the hearing, or seek to explain their absence thereafter, the decision below will be based on the uncontested evidence of the Complainant.

In the present case, the Complainant has alleged that he is entitled to a statutory redundancy payment in circumstance whereby his former employer ceased operations. The position of the Respondent, at least initially, was that the while they ceased operations due to the expiry of a lease, the Complainant’s contract of employment transferred to a new entity under the transfer of undertaking regulations.

In this regard, it is noted that Section 7(2) of the Act provides that,

“An employee who is dismissed shall be taken to be 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 for the purpose of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed”

Having regard to the foregoing, it is apparent that the cessation of business where the Complainant was employment would, ordinarily, entitle the Complainant to a statutory notice payment.

Matters are complicated somewhat by the Complainant taking up a new role in a business under new ownership sometime later. If this new employment is deemed to constitute a transfer of undertakings, the Complainant would not be entitled to a redundancy payment at the finalisation of his employment with the Respondent, as the same would have been deemed to be continuous with new employment.

In this regard, Regulation 3(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) provides that,

“These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.”

Subsection 2 goes on to defines these terms in the following manner,

“transfer” means the transfer of an economic entity which retains its identity;

“economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.”

In the matter of Spijkers v Gebroe Benedik Abbatoir CV[1986] ECR 119, the ECJ outlined a set of criteria which provide guidance when it comes to deciding whether a transfer of undertakings has occurred. The criteria, known as the “Spijkers Criteria” are as follows:

1.       Was the undertaking a stable undertaking, with an ongoing life of its own?

2.       Has the entity retained its identity?

3.       Have some or all of the staff been taken over by the new employer?

4.       Has the customer base transferred?

5.       Are the activities post-transfer similar to those carried out before transfer?

6.       Has there been an interruption of the activity?

7.       Has there been a transfer of assets?

In the matter of Overpass Ltd T/A Ocean Property Management v Clancy [TUD 1713], the Labour Court held that the criteria set out in Spijkers“are the decisive criteria for establishing the existence of a transfer”. In that decision the Court summarised the application of the relevant criteria as an examination of,

“…the type of undertaking or business in question, the transfer or otherwise of tangible assets such as buildings and stocks, the value of intangible assets at the date of transfer, whether the majority of the staff are taken over by the new employer, the transfer or otherwise of the circle of customers and the degree of similarity between activities before and after the transfer, and the duration of any interruption in those activities.”

In Symantec Limited v Leddy and Lyons [2009] IEHC 256, Edwards J determined that when a transfer of undertakings within the meaning of the Regulations occurs, an employee who does not transfer employment does not become entitled to a redundancy payment under the 1967 Act.

Regarding the instant case, the Complainant made several points in evidence that would indicate that a transfer of undertaking did not occur in this instance. In particular, the Complainant submitted that the business of the Respondent had entirely ceased prior to any new leaseholder taking effect. He further submitted that there was a temporal gap between his former employer ceasing trading, and a new leaseholder taking over. While he accepted that he now worked for the new leaseholder, the Complainant submitted that his role in the new leasehold is substantially different and that he is subject to an entirely different management structure. Strikingly, the Complainant submitted that the Respondent themselves did not view the previous employment as constituting a transfer of undertakings nor does his present employer recognise any continuity in service. They also did not entered into any form of consultation with the Complainant in advance of any purported transfer.

Having regard to the accumulation of the foregoing points, I find that the Complainant’s employment was not subject to a transfer of undertakings as defined by the Regulations. As a consequence of the foregoing, I find that the Complainant’s employment ended by way of redundancy, and his appeal succeeds.

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the Complainant has established the existence of a redundancy situation and the appeal succeeds.

I find that the complainant is entitled to a statutory redundancy payment based on the following information,

Date employment commenced:  1st October 2018

Date Employment ceased:           27th January 2023

Gross Weekly wage:                      €690.00

The entitlement is contingent on the Complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

Redundancy, Transfer of Undertakings, Spijkers