Complainant

Respondent

Parties

Elaine  Byrne

Adydan Singh K Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00069477-001

21/02/2025

The Complainant worked as a part-time Deli Assistant with the Respondent and received remuneration in the amount of €120.65 per week. She stated that although she was dismissed on the ground of redundancy, she did not receive a redundancy payment.

The Complainant asserted that her employment was terminated by reason of redundancy on 28 November 2024. She further contended that she did not receive a statutory redundancy payment. She submitted that the Transfer of Undertakings (Protection of Employment) Regulations 2003 (TUPE) applied to her employment, and as a result, her continuous service should be deemed to have commenced on 2 December 2021. On that basis, she stated that she had accrued at least two years of continuous service and was therefore entitled to a redundancy payment.

The Respondent accepted that the Complainant’s employment was terminated by reason of redundancy on 28 November 2024. However, the Respondent contended that the Complainant was not entitled to a statutory redundancy payment, as she had not accrued the requisite two years of continuous service, her employment having commenced only in August 2024.

The Respondent further asserted that the Transfer of Undertakings (Protection of Employment) Regulations 2003 (TUPE) did not apply to the Complainant’s employment, notwithstanding that the Respondent had acquired all of the assets of the transferor and had assumed operation of the premises at which the Complainant had worked prior to the transfer.

Preliminary Findings:

The Respondent stated that I did not have jurisdiction to hear this complaint because the Complainant had less than the 2 years’ service that would be required for the purposes of seeking a redundancy payment because her employment commenced in August 2024. The Complainant disputed this and stated that her employment with the Respondent commenced on 2 December 2021 by virtue of the fact that her employment had been subject to a transfer of undertaking in August 2024.

While it is clear that very little interaction took place between either the transferor or the transferee, as highlighted by the lack of written documentation in respect of the transfer, the Respondent accepted that they had acquired all of the assets of the transferor when they took over operation of the premises where the Complainant had worked up until the date of transfer. Accordingly, I find that a transfer of undertakings did take place.

My findings in this regard are in line with the decision of the High Court in the Minister for Employment Affairs and Social Protection v The Labour Court and Dunne [2019] IEHC 634.

Findings on the Substantive Matter:

The Redundancy Payments Acts state as follows:

7- (1)  An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided- (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2)  For the purposes of subsection (1), 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 purposes 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, 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, or

(c)  the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)  the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)  the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,…”

Analysis:

As outlined above in respect of my finding on the preliminary matter, I find that the Transfer of Undertakings (Protection of Employment) Regulations 2003 (TUPE) applied to the Complainant’s employment. Accordingly, her period of continuous service is deemed to have commenced on 2 December 2021.

It is not in dispute that the Respondent reduced the number of employees at the premises where the Complainant was employed. I therefore find that, pursuant to section 7(c) of the legislation cited above, the Complainant was entitled to a statutory redundancy payment upon her dismissal on 28 November 2024.

I allow the Complainant’s appeal for the reasons set out above and find that she is entitled to a statutory redundancy lump sum payment under the Redundancy Payment Acts 1967 – 2012 based on the following criteria: 

-          Date of commencement: 2 December 2021

-          Date of termination: 28 November 2024

-          Gross weekly wage: €120.65

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.