Complainant

Respondent

Parties

Patrick  Foley

Skn Batch Ltd  t/a Harringtons Bakery

Representatives

PF Lynch & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00066166-001

22/09/2024

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

CA-00066166-002

22/09/2024

The Complainant appeared with Anita Foley for support. He gave evidence on affirmation and filed written submissions in advance of the hearing date.

Jerry Harrington, Director appeared at the hearing and gave his evidence on affirmation. Mr Harrington was accompanied by James Collins, Accountant with the Liquidator Patricia Fitzgibbon.

CA-00066166-001

It was the Complainant’s evidence that he commenced employment with Mr. Dan McCarthy on 27 June 2000 as a van driver. His employment continued without a break in service, delivering bread to the same customers.

The Complainant stated that it was his understanding Mr. Jerry Harrington took over Mr. Dan McCarthy’s delivery business along with the “goodwill,” and the Complainant continued to perform the same work. There were no changes to the terms and conditions of employment, except that wages were paid by Harrington’s Bakery instead of Mr. McCarthy.

The Complainant maintained that he continued his duties without any interruption in service and did not receive a redundancy payment for the period worked with Mr. McCarthy, from 27 June 2000 to December 2004.

The Complainant disagreed with the Respondent’s evidence what bakery he delivered in on which  route.

CA-00066166-002

It was the Complainant’s evidence that they were notified on 08 June 2024 that Respondent had ceased trading with immediate effect and that a Liquidator appointed.

On 20 June 2024, the Complainant was asked by the Respondent to sign a Statutory Redundancy Payment Scheme – Employee Declaration form. A redundancy calculation sheet was provided, which recorded the Complainant’s start date with Harrington’s Bakery as 04 January 2005.

It was the Complainant’s evidence that he questioned this figure and asked on 01 August 2024 for a breakdown of the stated redundancy figure of €15,952 and in, specifically why his prior service with Dan McCarthy had not been included. In response, the Complainant received an email dated 24 August 2024 from Mr Harrington, who stated that “Dan McCarthy did not sell or transfer his trade to me,” and that the Respondent considered the Complainant a new employee following Mr. McCarthy’s cessation of trade.

It was further the Complainant’s evidence that they contacted the Respondent again on 17 July and 01 August 2024 to request a full breakdown of the redundancy calculation, including the statutory notice period and any outstanding holiday pay.

In addition, the Complainant stated it was his understanding that the notice period and outstanding holidays constituted a payment of wages and asked when the Respondent would be making these payments.

The Complainant received a response on 24 August 2024, stating inter alia that “SKN Batch Ltd is not in a financial position to make holiday pay or notice period pay but we will be working with the Dept. of Social Protection next month to make that happen for you.”

It was further the Complainant’s evidence that on 25 September 2024, he received an email from the Liquidator, noting that there was no documentation on record for the TUPE and inviting the Complainant to furnish any documentation he may hold.

A further reply was sent to the Liquidator on 01 October 2024 advising to proceed with the statutory redundancy on the basis of the dates provided by the Respondent and advising that he was referring the TUPE matter to the Workplace Relations Commission.

Upon inquiry, the Complainant confirmed he signed the declaration on the statutory redundancy form and received the statutory redundancy subsequently. He added that he wrote a note on the form stating “Payment accepted subject to decision of the WRC in regard to complaint made (TUPE period)”

CA-00066166-001

It was Mr Harrington’s evidence that the Complainant began working for the Respondent in 2004. His previous employer was Mr. Dan McCarthy, who operated as a bread agent for Irish Pride Ltd. and also purchased bread from both Harringtons and MPH Foods Ltd.

The Respondent stated that Mr. McCarthy paid for bread on a weekly basis, and he had no direct account relationship with the shops to which he sold the bread.

Mr Harrington stated that upon Mr. McCarthy’s retirement in 2004, Irish Pride appointed a new bread agent in Kanturk. Mr. McCarthy sold one of his vans to Mr. Callaghan, who also employed the driver.

The Respondent stated that they purchased another van and subsequently hired the Complainant, who had also been employed by Mr. McCarthy, to drive it. At that time, the Respondent already had a van and driver servicing areas such as Killarney, Kilgarvan, North Cork, and West Cork, and this new van enabled them to expand operations further into the greater Kenmare area.

The Respondent claimed that the only transactions that took place between Mr. McCarthy and Harrington’s upon McCarthy’s retirement were payment of final invoices for bread and the purchase of a van.

CA-00066166-002

It was submitted that the statutory redundancy was applied for and paid on the basis of the Complainant’s dates of employment with the Respondent.

Preliminary matter

It is first necessary to consider what is the period of contravention in this complaint. Regulation 10 (6) which provides:-

“(6)      A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.”

CA-00066166-001

In light of the above Regulation and based on the evidence before me, I find that the Complainant’s complaint under the TUPE Regulations falls outside the applicable period of contravention, i.e., the 6-month period, for the following reasons:

The Complainant stated that he began working for the Respondent in January 2005. While the Respondent claimed he commenced employment in December 2004, the parties are broadly in agreement, with only a one-month discrepancy.

The complaint referred to the Workplace Relations Commission by the Complainant was that the Respondent (the alleged Transferee) failed to ensure that his terms and conditions were transferred from his previous employer (the Transferor).

As it is alleged that the transfer occurred in 2004, I find that the period of the alleged contravention begins from that year.

While there was no application for an extension of time, I have considered the evidence before me and believe it would be fair and reasonable to at least consider such an extension. However, the Regulations only allow for an extension of up to 12 months, which, in this instance, would be of no benefit to the Complainant.

While the issue of service only arose in the context of a redundancy situation, the legislation does not provide for time to run from the date of knowledge. On this basis, I find that the Commission does not have jurisdiction in this matter, and for this reason, I find that the complaint is not well-founded.

CA-00066166-002

In light of the above finding, I find the period of service contained in the statutory redundancy declaration signed by the Complainant to be correct. Consequently, I am disallowing the Complainant’s appeal.

CA-00066166-001

I find the complaint is not well founded.

CA-00066166-002

I am disallowing the Complainant’s appeal.

Redundancy – TUPE