Complainant

Respondent

Parties

Betty McCormack

HomeDel Trans Direct Limited

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-00065181-001

02/08/2024

The Complainant gave evidence on her own behalf by way of civil affirmation and evidence was given on behalf of the Respondent by its Director of Operations, Mr. Jonathan Kane, also by way of civil affirmation.

It was clarified at the outset of the hearing that the correct legal name of the Respondent is HomeDel Trans Direct Limited, rather than simply HomeDel as named on the complaint form. There was no objection to the correction of the Respondent name to reflect the correct registered legal entity.

The Complainant says that she commenced employment with RLC Transport on the 10th July 2017. Her weekly rate of pay was €610, or €122 per day.

On 23rd January 2024, she received an email advising that a transfer would take place from RLC Transport Ltd to the Respondent. On 26th January 2024 she received a TUPE document which said that RLC Transport was being taken over by HomeDel as of 12th February and by agreement with management of RLC Transport. She worked for the Respondent until 18th April 2024 when she was told that she was being temporarily laid off due to no work. She received no confirmation of this in writing, just a letter for social welfare to say that she was out of work. She sent an RP9 form to the Respondent on 22nd July 2024 to claim for redundancy but was told that since she was on probation then no redundancy was applicable.

During the hearing, the Complainant stated that she had been told that her employment would simply move from RLC Transport to the Respondent and that everything would stay the same, except they would move premises and be paid fortnightly instead of weekly. She understood that everything would stay the same and she would still have a job, just in a different premises. A new contract of employment had been presented to her by the Respondent and she had signed this, however she had since received legal advice that this was not a valid contract.

The Complainant said that the Respondent did not get the work that it expected and so there was no work to do. However, she believed that she was entitled to redundancy on that basis and submitted this complaint for that reason.

The Respondent disagreed with the Complainant on only one point, that a transfer had taken place from RLC Transport to the Respondent. It was stated that a stop had been put to the transfer by another party and so nothing was ever transferred over. Mr. Kane said that nothing was ever signed or brought over and there was therefore no work to do. He said that the Complainant was the only staff member who had come over to the Respondent and that was on a new contract.

The Complainant stated that some employees from RLC Transport were in HomeDel and Mr. Kane replied that none were contracted over though.

An email from Ms. Christina Kane, head of Admin and Accounts at HomeDel Ireland, was sent to the WRC on 15th August 2024. In that email, Ms. Kane sent a link to press coverage relating to RLC Transport Ltd and stated that:

“Mrs McCormack commenced work with the company on 06/02/2024 and would not be due any redundancy due to the short time she was employed.

There was no TUPE arrangement signed due to the closure of her previous employers business before any such arrangement could be completed between the companies, please see below attached for your reference.

[press link]

HomeDel did offer Mrs McCormack a new job after this closure and she accepted. A new contract with HomeDel was signed on 06/02/24 on a probationary basis. Please see attached.

Due to a reduction in business we could not unfortunately keep Mrs McCormack in our employment on 19/04/24. We then received an email from her on 22/07/24 asking to fill in an RP9 form for redundancy.

We did explain that due to the short term of her employment that she would not qualify for this.”

Ms. Kane did not attend the hearing and so did not offer sworn evidence on behalf of the Respondent.

It is the Respondent’s case that no transfer took place; the Complainant was in new employment and therefore not entitled to redundancy.

CA-00065181-001 – Complaint under Section 39 of the Redundancy Payments Act, 1967

Section 7 of the Redundancy Payments Act 1967, as amended (the “Act”), provides 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 two 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 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, or 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.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks."

Section 12 of the Redundancy Payments Act, 1967 provides:

" 12. (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

I am satisfied, based on the evidence provided, that the Complainant was dismissed by reason of redundancy mainly due to the fact that the requirements of the business diminished to the extent that the Complainant was not required to carry out work of a particular kind. I am further satisfied that she had been laid off for a period of four or more consecutive weeks and also that she gave notice of her intention to claim redundancy payment in writing.

Based on the evidence provided at the hearing however, there is a dispute in this case about whether or not the Complainant has been employed for the requisite period.

The “requisite period” is defined at section 7(5) of the Act as:

“(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.”

On a plain reading of the above section, the Complainant was not employed by the employer who dismissed her for the requisite period. However, as ‘continuous employment’ is to be read within the meaning of Schedule 3 then I must also look at that meaning. Schedule 3, under the heading of ‘Continuous Employment’, states that:

4. For the purposes of this Schedule employment shall be taken to be continuous unless terminated by dismissal or by the employee’s voluntarily leaving the employment, but for the purposes of this paragraph ‘dismissal’ does not include a dismissal within the meaning of the Unfair Dismissals Act, 1977, and in respect of which redress has been awarded under section 7(1)(a) or 7(1)(b) of that Act.

and

6. Where a trade or business or an undertaking (whether or not it be an undertaking established by or under an Act of the Oireachtas), or part of a trade or business or of such an undertaking, was or is transferred from one person to another, the period of employment of an employee in the trade, business or undertaking (or in the part of the trade, business or undertaking) at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of the period of employment.

The question for me to address therefore is whether or not there was an undertaking that transferred from one person to another. If I find that there was a transfer within the meaning of section 6 of Schedule 3 of the Act, then the period of employment of the Complainant at the time of the transfer shall count as a period of employment with the Respondent, and any transfer will not have broken the continuity of the period of employment.

The Complainant commenced employment with RLC Transport Limited on 10th July 2017. She states that a transfer of undertaking took place between RLC Transport Limited and the Respondent on 12th February 2024.

The Complainant provided a copy of an email dated 23rd January 2024 with the subject line reading ‘RLC Transport Management Change’. The email is from Jacqueline Kane, Director/Owner, and states as follows:

“As you may be aware, Christopher Kane has been removed as a Director of RLC Transport and no longer works for the Company.

This poses only a slight change to the operations and will not affect your employment with the company. All staff are expected to continue with their usual daily duties and all wages will be paid as normal.

I have appointed Jonathan Kane, Director of HomeDel UK & Ireland to assist with this transition. We will be working closely with the larger HomeDel Ireland Team during this time.

Christopher Kane no longer has authority to direct any staff or operations going forward. For the interim, you can report to myself or Jonathan.

There will be a consultation meeting held over the coming days with all staff to discuss the above and we will be happy to answer any questions you may have.”

The Complainant also provided a letter from Christina Kane, Head of Administration and Accounts, dated 26th January 2024. The letter is on HomeDel headed paper and states:

“I am writing to inform you that we are proposing the transfer of all RLC Transport Ltd employees to HomeDel Trans Direct Ltd, with the agreement of Management at RLC Transport.

The Company believes that this proposal constitutes a transfer of your employment under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE). This means that your employment will transfer to HomeDel Trans Direct Ltd on : 12TH FEBRUARY 2024 and your existing terms and conditions may change to facilitate the integration.

I can confirm that there are no legal or social implications as a result of this transfer.”

The letter goes on to outline when the Complainant would receive her final payment from RLC Transport Ltd (9th February 2024) and her first payment from the Respondent (22nd February 2024). It also states that in line with Irish Revenue guidelines, the company will endeavour to transfer all employee’s tax credits to the Respondent beginning on 12th February 2024 to avoid the Complainant being emergency taxed.

The Complainant stated that her employment had transferred from RLC Transport Ltd to the Respondent.

Mr. Kane, on behalf of the Respondent, gave evidence that this transfer did not in fact take place. However, no supporting documentation to show that the transfer was not effected was provided. For example, there is no evidence of communication to employees that the transfer was not going ahead after all. Ms. Christina Kane set out the Respondent’s position in an email, namely that the Respondent says that the Complainant was on a probationary contract. However, she did not attend the hearing to give sworn evidence of this. Further, I do not consider that the media coverage provided is sufficient evidence that a transfer did, or did not, take place. In the absence of direct evidence regarding the source material which led to the reporting, I am unable to consider this as supporting evidence that the transfer did not take place.

The Complainant’s evidence and documentation relating to the transfer on the other hand is compelling. The above email and letter explicitly describe a transfer of undertaking and are consistent with the Complainant’s oral evidence that she simply moved premises but that the terms and conditions of her employment were largely otherwise unaffected, save for a change from weekly to fortnightly remuneration. I find the Complainant’s evidence and supporting documentation that a transfer took place persuasive. This is particularly in light of the fact that the Complainant did move from RLC Transport Ltd to the Respondent at the time expected and there is no evidence of correspondence advising her that this was a new employment and not as a result of the anticipated transfer.

The documentation provided is, however, somewhat contradictory. The contract of employment that she signed with the Respondent shows a commencement date of 2nd February 2024 and does contain a probationary period of three months. However, the question that I must answer is whether or not a transfer took place for the purposes of determining the requisite period of continuous employment, specifically with regard to the Complainant herein.

Notwithstanding the contract signed by the Complainant I find that, on the balance of probabilities, a transfer within the meaning of section 6 of Schedule 3 of the Act did take place as regards the Complainant’s employment. The Complainant’s period of continuous employment is therefore uninterrupted from 10th July 2017. She has consequently been employed for the requisite period of 104 weeks.

The Complainant’s continuous period of employment is therefore 10th July 2017 to 18th April 2024, or 6 years, 9 months and 9 days.

Section 39 of the Redundancy Payments Acts 1967, as amended, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.  I find that the Complainant is entitled to a statutory redundancy lump sum within the meaning of the Act.

I declare that the Complainant is entitled to a statutory redundancy lump sum payment calculated in accordance with the following criteria:

·Date of commencement: 10th July 2017

·Date of termination: 18th April 2024

·Gross weekly wage: €610.00 (subject to the statutory wage ceiling of €600 per week)

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

Redundancy