ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057289
Parties:
| Complainant | Respondent |
Parties | Joanne Fleming | Duffmin Limited |
Representatives | Domhnall Canney, T.A. O'Donoghue Canney & Co. | Gerry Minogue, Director |
Complaints:
Act | Complaint 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-00069464-004 | 14/02/2025 |
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-00069504-005 | 24/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00069727-001 | 14/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00069727-002 | 14/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00069727-003 | 14/02/2025 |
Date of Adjudication Hearing: 25/02/2026
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 section 8 of the Unfair Dismissals Acts, 1977 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.
At the adjudication hearing, the parties were advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. The legal perils of committing perjury were explained. All participants who gave evidence were sworn in. The parties were offered the opportunity to cross-examine the evidence.
The parties were also advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the terms of Complainant and Respondent are used throughout the body of the decision and the Respondent’s employees are also referred to by their job titles.
I have taken the time to carefully review all the submissions and evidence both written and oral. I have noted the respective positions of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I am required to set out ‘such evidential material which is fundamentally relevant to the decision’ per MacMenamin J. in Nano Nagle School v Daly [2019] IESC 63.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute. Both parties confirmed that they had been given a full opportunity to present their respective case.
The Complainant was represented by Mr Domhnall Canney of T.A. O’Donoghue Canney & Co. Mr Tony Niland, the Complainant’s partner attended the hearing.
The Respondent was represented by Mr Gerry Minogue, Director.
Background:
The Complainant commenced her employment with the Respondent in December 2014. In May 2023, her employment was transferred by way of a transfer of undertakings to a new employer, Hair and Beauty at Vanity Tuam Limited.
On 14 February and 24 February 2025, the Complainant referred to the Director General of the WRC a number of claims against both entities. |
Summary of Complainant’s Case:
At the adjudication hearing, the Complainant’s solicitor accepted that the Respondent was not the Complainant’s employer at the relevant time. It was accepted that the Complainant had no claims against the Respondent and, in any event, any such claim would be out of time. Nevertheless, the Complainant’s solicitor was reluctant to withdraw the claims against the Respondent and expressed his preference for a written decision to be issued. CA-00069464-004 under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The Complainant alleged that the previous employer (transferor) did not inform employee representatives of certain details of the transfer. CA-00069504-005 under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The Complainant alleged that the previous employer (transferor) did not inform employee representatives of certain details of the transfer. CA-00069727-001 under Section 8 of the Unfair Dismissals Act, 1977 The Complainant alleges that she had to leave her job due to the conduct of the Respondent or others at work. CA-00069727-002 under section 27 of the Organisation of Working Time Act, 1997 The Complainant alleges that she did not receive her annual leave entitlements. CA-00069727-003 under section 7 of the Terms of Employment (Information) Act, 1994 The Complainant alleges that she did not receive a statement in writing of her terms of employment. |
Summary of Respondent’s Case:
The Respondent submitted that the Complainant’s employment transferred by virtue of a transfer of undertakings to Hair and Beauty at Vanity Tuam Limited in May 2023 and, therefore, the Respondent was not the Complainant’s employer. The Respondent submitted that Duffmin Limited was incorporated around 2000. The Respondent purchased a property in Tuam which was renovated into a pharmacy on the ground floor. The second and third floor were renovated around 2007 with apartments on the third floor and offices on the second floor. The Respondent was unable to let the offices and, in 2009, effected change of use to hair/beauty salon. The salon was let for a period but subsequently ceased trading. The Respondent took over the running of the hair salon in June 2011. As both directors are in their sixties, they were putting their affairs in order. Part of this process involved the disposing of parts of their business interests. The Respondent created a vehicle for this in forming a new company to operate the hair salon and all employees were given notice of this. The transfer would not impact in any way on the employees’ rights or contracts of employment. |
Findings and Conclusions:
There was no dispute between the parties that a transfer of undertakings took place in May 2023. At that time, the Complainant’s employment transferred from the Respondent to Hair and Beauty at Vanity Tuam Limited. The Complainant’s representative accepted that the Respondent was not the Complainant’s employer at the relevant time. It was further accepted by the Complainant’s representative that any claim she could have against the Respondent would be submitted to the Director General outside the prescribed time limit. CA-00069464-004 under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The time limit for submitting a complaint is set out at section 41(6) of the Workplace Relations Act, 2015: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the Workplace Relations Act 2015 provides that an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions: An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The complaint was referred to the Director General on 14 February 2025. The relevant transfer of undertakings took place in May 2023. Therefore, this complaint was referred to the Director General of the WRC outside the time limits provided for in section 41(6) of the Act. The claim is also clearly outside of the extended period of twelve months as provided for in section 41(8) of the Act. CA-00069504-005 under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The time limit for submitting a complaint is set out at section 41(6) of the Workplace Relations Act, 2015: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the Workplace Relations Act 2015 provides that an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions: An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The complaint was referred to the Director General on 14 February 2025. The relevant transfer of undertakings took place in May 2023. Therefore, this complaint was referred to the Director General of the WRC outside the time limits provided for in section 41(6) of the Act. The claim is also clearly outside of the extended period of twelve months as provided for in section 41(8) of the Act. CA-00069727-001 under Section 8 of the Unfair Dismissals Act, 1977 There was no dispute that the Complainant’s employment transferred to Hair and Beauty at Vanity Tuam Limited in May 2023. Therefore, the Respondent was not the Complainant’s employer at the time of termination. CA-00069727-002 under section 27 of the Organisation of Working Time Act, 1997 There was no dispute that the Complainant’s employment transferred to Hair and Beauty at Vanity Tuam Limited in May 2023. Therefore, the Respondent is not the correct respondent for the purposes of this claim. CA-00069727-003 under section 7 of the Terms of Employment (Information) Act, 1994 There was no dispute that the Complainant’s employment transferred to Hair and Beauty at Vanity Tuam Limited in May 2023. Therefore, the Respondent is not the correct respondent for the purposes of this claim. |
Decision:
Section 41 of the Workplace Relations Act 2015 as amended 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 8 of the Unfair Dismissals Acts, 1977 as amended requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons outlined above, I declare the following complaints to be not well founded: CA-00069464-004 under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00069504-005 under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00069727-001 under Section 8 of the Unfair Dismissals Act, 1977 CA-00069727-002 under section 27 of the Organisation of Working Time Act, 1997 CA-00069727-003 under section 7 of the Terms of Employment (Information) Act, 1994 |
Dated: 9th July 2026
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
TUPE – incorrect respondent – out if time |