Complainant

Respondent

Parties

Nicole  Madariaga

Kishore Mygala Store Limited,  Gala Holles Street

Representatives

Self

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00071941-001

28/05/2025

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-00071941-002

28/05/2025

The Complainant worked as a Deli Assistant with the Respondent.  She commenced employment on 12/02/2023.  She worked between 20 – 30 hours per week and was paid on the minimum wage and based on the payslips submitted in evidence her average pay was €314.61 per week.  The Complainant went on maternity leave and during that time the ownership changed.  When she contacted the new owner after her Maternity and Parents Leave she was told that she would have to be interviewed for a job as the company she was employed by is no longer trading.  She submitted her complaints to the WRC on 28/05/2025

Evidence – the Complainant:

The Complainant gave evidence on affirmation.  She commenced working in the store as a Deli Assistant on 12/02/2023.  The company who owned the store was Elpurkarova Retail Ltd.  She reported her pregnancy to the owner on 09/02/2024 and as a result of the treatment she received she made a complaint to the WRC. She was successful in her complaint and was awarded a sum of money.  This case has now been appealed to the Labour Court by the new owners of the shop, Kishore My Gala limited.

The Complainant’s Parents Leave ended on 30/04/2025.   She contacted Mr Kishore Georgge on 01/05/2025 requesting to take the remainder of her holidays and notified him of her intention to return to work in early June.  She received a reply, dated 19/05/2025, stating that the company she was employed by is no longer trading at that premises and that a new company is trading there.  She was advised “New company is trading there.  If you still looking for a job you need to be interviewed and selected by the manager.  I will pass your info to the store manager.  Thanks for your interest”.   The Complainant provided a copy of this communication to the WRC.   The Complainant followed this up with a request for clarification in relation to her employment status was and also asking why she was told to apply for a job although it was her understanding that she still had a contract of employment.  The Complainant received a reply from Mr George stating that the original company she worked for is now dissolved and that she only worked for the company for two weeks before taking maternity leave.  She was also told that she had received payment for any work but if there were any outstanding payments from the previous ownership to provide details. 

It is the Complainant’s position that in 2023 she was earning between €200 and €300 per week.  She never transferred to the new company and she feels that she was treated as if she was “an extra person”.  When she made attempts to return to work she was told that she would have to be interviewed to see if she would be offered a role.  It was confirmed to her that she did not have a role to go back to.  She was also not paid for her public holidays and annual leave which were accrued.  The Complainant also confirmed that at no stage was she issued with any documentation in relation to the transfer of ownership.  At no stage were there any discussions or consultations with her in relation to the transfer.  The Complainant became aware of the transfer when Mr George arrived in the shop in April 2024 and he was doing a manager’s role there for some months before the transfer.  The Complainant stated that when she applied for maternity leave it took the Respondent two months to sign the form and return it to her.

The Complainant also noted that she did not look for other shop work as she was waiting for the Respondent to come back to her about her return to work.

The Complainant also confirmed that the letter which the Respondent provided to the WRC purporting to offer her a job and stating that her employment was continuous and confirmed her terms and conditions was never received by her.  The first time she saw this document was when it was provided to her by the WRC who received it from the Respondent.

There were no questions for the Complainant from the Respondent by way of cross examination.

 Evidence – Mr Kishore George:

Mr George gave evidence on oath on behalf of the Respondent.  He is a director and owner of the business.  He confirmed that he worked in the store as a manager from 08/02/2024 as a manager.  At that time the company who ran the store was Elpurkarova Retail Ltd.  He worked with the then owner to set up a new company, Kishore Mygala Store Limited, and the business transitioned to the new company in January 2025 and he took over the shop in February 2025.

At that stage there were 10 employees including the Complainant.  Not all employees were kept.  Mr George gave evidence that when he took over the shop it was operating at a loss.  He opened copies of the accounts at the hearing and reviewed the figures.  He stated that the Deli Counter was making very little money and this was the area where the Complainant was employed to work as a Deli Assistant.  By way of example he stated that the sales for the Deli area was approximately €22.79 per day. He had to make decisions in relation to keeping the business going.  Mr George explained that when the Complainant was told she would have to be interviewed it was to see what area in the shop she would work as the Deli was no longer in place.  The interview process would have provided an opportunity to explain to the Complainant that her role had changed and to explain what her new role would be.  The Complainant’s hours would also have to change.

Mr George explained that his company is a new distinct company and the previous owner is no longer associated with the business.  Mr George stated that he had to make a lot of decisions to keep this shop running.

Cross examination – Mr Kishore George:

Mr George was cross examined by the Complainant.  He was asked when he started to operate the shop.  He stated that he first started working in the shop in May 2024 as a manager.  The new company came into existence in 2025 and he took over the shop with his own company in February 2025.

It was put to Mr George that the Complainant had a successful case against the previous owners, Elpurkarova Retail Ltd, in 2024 and he has appealed this to the Labour Court.  He was asked why he appealed this decision.  Mr George explained that his company has taken over the previous company and everything has transferred to the new company.

Mr George was asked about the letter to the Complainant which was included in his submission to the WRC.  He stated that he believed that he had sent it to the Complainant by email. 

In response to a question from the Adjudication Officer Mr George confirmed that he could access his emails from his mobile phones.  He was asked to find the email which he stated was sent to the Complainant.   The Adjudication Officer noted that this was sent to the WRC on 01/04/2024.  After examining his emails Mr George confirmed that he never sent this email to the Complainant.

Mr George was asked by the Adjudication Officer what his understanding of the Transfer of Undertakings regulations were.  He confirmed that he was not aware of these.  He also confirmed that he did seek any advice, legal or otherwise, in relation to his obligations when he took over the business.

Mr George in a closing submission stated that he was not aware of the legal requirements when he took over the shop.  The previous owner assisted him in setting up his company.  The Complainant worked in the shop with him for two weeks before going on maternity leave.  Mr George stated that there would be no benefit to him in dismissing the Complainant.  In order to keep the shop viable he had to change staff roles.  Other changes involved moving from a two person opening shift to a solo opening model and he also developed a key holder position.

Mr George noted that he has made a formal offer to the Complainant to return to a suitable alternative shift.  Any actions he took were to preserve the viability of the business and were not discriminatory or intended to circumvent the Complainant’s rights under the Maternity Protection Acts.

CA-00071941-001: 

The Complainant has submitted a complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977.arising from her constructive dismissal from her employment with the Respondent.

The Law:

Section 1 of the Unfair Dismissals Act 1977, as amended, in relevant part, states as follows:

(1)             “In this Act –

“dismissal” in relation to an employee means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal. 

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the Complainant to demonstrate that her resignation was justified.

In supporting her decision to terminate her employment the Complainant will have to prove that the circumstances of her dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the Complainant’s contract of employment the Complainant’s evidence was that no breach occurred but that her employment was not transferred.  I note that the Complainant did not tender her resignation by way of letter, text or email. She relies on a text message and an email from the Respondent to base her conclusion that she was dismissed.

In examining the conduct of the employer there was no evidence that the Respondent had organised meetings in relation to the proposed transfer.

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

There is no doubt that this was a difficult situation for the Complainant.  She had worked for the Respondent for just over two years and was clearly happy with the working arrangements.

Based on the evidence and the authorities cited, I find that the Complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp 91978) IRL 332. 

CA-00071941-002:

The Complainant has submitted a complaint seeking adjudication by the WRC under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003).

It is not disputed that a transfer of undertakings occurred between Elpurkarova Retail Ltd (referred to as the transferor in the regulations) and Kishore My Gala Store Limited,  the Respondent, (referred to as the Transferee in the regulations).  This took effect in February 2025.

The Applicable Law:

As the Respondent confirmed at the hearing that he was not aware of the provisions of the regulations it is essential to recite these to ensure absolute clarity and understanding:

“4. Rights and obligations

(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee….

…(3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts.

(4) (a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018] are protected under those Acts.

(b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018], are protected. 

5. Dismissals and termination of employment

(1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.

(2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.

(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

(4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2015], relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

8. Information and consultation

(1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of—

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and 

(d) any measures envisaged in relation to the employees…

(2) The transferor shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3) The transferee shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer.

(b) the reasons for the transfer.

(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and

(d) any measures envisaged in relation to the employees.

(7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations”.

While the Regulations may appear complex, their effect can be stated in clear terms:

·        Regulation 4 provides for the automatic transfer of contracts of employment existing at the date of transfer.

·        Regulation 5 prohibits dismissal where the sole or principal reason is the transfer.

·        Regulation 8 imposes a mandatory obligation to inform and consult affected employees.

It is important to note that Regulation 5 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131/2003) expressly prohibits the dismissal of an employee for reasons connected with a transfer. This prohibition is not confined to dismissals occurring before or at the time of the transfer, but extends to any dismissal occurring thereafter where it is connected with the transfer.

The automatic transfer of employment is not contingent upon the transferee’s immediate ability to assign the employee to a particular role. The Court of Justice has made clear that the protective operation of Directive 2001/23 cannot be undermined by the organisational or operational requirements of the transferee.  In Piscarreta Ricardo v Portimão Urbis (Case C-416/16), the Court confirmed that the automatic transfer of employment rights under Article 3(1) is not dependent upon the transferee’s internal organisation or restructuring requirements, which is a matter relied upon by the Respondent in this case. Accordingly, the Respondent, as transferee, cannot defer the transfer of an employee until such time as a role has been created or reorganised. These protections are mandatory in nature and are intended to safeguard employees.

I find that the Complainant’s contract of employment transferred automatically to the Respondent by operation of Regulation 4(1).

Dismissal by reason of the transfer (Regulation 5):

Having found that the Complainant’s employment transferred automatically to the Respondent, I must determine whether she was dismissed within the meaning of Regulation 5. The evidence establishes that the Complainant was not taken on by the Respondent at the date of transfer and that her employment did not continue thereafter. No alternative role was offered to her, nor were any redeployment options explored. The uncontested evidence further establishes that no consultation took place in respect of her position.

I am reinforced in this conclusion by the fact that the Respondent, in advance of the hearing, produced an undated document, in a format inconsistent with its other correspondence, purporting to invite the Complainant to return to her position as a Deli Assistant. The document stated, “we are pleased to formally invite you to return to your position as a Deli Assistant …” and sought confirmation of acceptance by a specified date. However, the date field appeared as a placeholder (“[Insert Date – e.g., 3 days from now]”), indicating that the document was a template obtained by the Respondent.

In oral evidence, the Respondent confirmed that this document was never issued to the Complainant. I therefore conclude that it was furnished in an attempt to create the impression of compliance with its obligations. Notwithstanding this, the Respondent accepted that it had no knowledge or understanding of those obligations.  It is pertinent to note that “ignorance of the law is no excuse” (ignorantia juiris non excusat) is a fundamental legal principle which means that a person cannot escape liability for a violation of a law simply because they were unaware of it.  Individuals are required to comply with the regulations and a statement that there was a lack of knowledge is not a valid defence.

The Court of Justice has confirmed that the legal effects of a transfer arise automatically at a fixed point in time, namely the date on which responsibility as employer passes from the transferor to the transferee. In this case, the transfer occurred in February 2025.  In Celtec Ltd v Astley (Case C-478/03), the Court held that contracts of employment existing at that date transfer by operation of law and that the parties cannot postpone or disapply those effects by agreement or arrangement.

It follows that where an employee’s employment terminates because the automatic transfer of their contract is not given effect, the resulting loss of employment is causally connected to the transfer and constitutes a dismissal by reason of the transfer. The Complainant lost her employment because she was excluded from the transfer, and that exclusion arose directly from the Respondent’s failure to give effect to the automatic transfer of her contract.

I therefore find that the Complainant was dismissed by reason of the transfer, contrary to Regulation 5.

Failure to inform and consult (Regulation 8):

I further find that the Respondent failed to comply with its statutory obligations under Regulation 8 to inform and consult. The undisputed evidence establishes that the Complainant was neither informed of the proposed transfer nor consulted regarding its implications for her employment. She was afforded no opportunity to engage with the process, notwithstanding that she was directly affected.

The Complainant corresponded with the Respondent seeking clarification regarding her employment status; however, her correspondence went unanswered.  This failure was complete rather than merely technical and constitutes a serious breach of the Regulations.

I am satisfied that the Respondent:

a)      Dismissed the Complainant by reason of the transfer which was contrary to Regulation 5

b)     There was a failure to inform or consult with the Complainant which is in breach of Regulation 8.

Redress:

Regulation 10 deals with redress:

“10.Decision under section 41 of Workplace Relations Act 2015:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely—

(a) declare that the complaint is or, as the case may be, is not well founded,

(b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action, or

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable in the circumstances, but—

(i) in the case of a contravention of Regulation 8, not exceeding 4 weeks' remuneration and,

(ii) in the case of a contravention of any other Regulation, not exceeding 2 years' remuneration, in respect of the employee's employment calculated in accordance with regulations made under section 17 of the Unfair Dismissals Act 1977”.

In accordance with Regulation 10 of the 2003 Regulations, I am required to award such redress as is just and equitable, having regard to all the circumstances of the case. The purpose of compensation under the Regulations is to provide an effective, proportionate and dissuasive remedy for the infringement of the Complainant’s statutory rights.

The Complainant’s undisputed evidence is that her average weekly remuneration (net pay) at the time of the transfer was €314.61.

Regulation 5 – Dismissal by reason of the transfer:

Having regard to the circumstances of the case, and in particular the fact that the Complainant was not offered employment upon confirming her availability from 01/06/2025, I find that she was excluded from the transfer and was thereby dismissed by reason of the transfer.

I consider that compensation equivalent to eleven months’ remuneration is fair, reasonable and proportionate. This period reflects the interval between the Complainant’s return from Parent’s Leave on 01/06/2025 and the date of the hearing.

The eleven-month period is calculated on the basis of 4.33 weeks per month, giving a total of 47.63 weeks.

€314.61 × 47.63 weeks = €14,984.87

I therefore award the Complainant €14,984.87 as a net sum in compensation for dismissal contrary to Regulation 5.

Regulation 8 – Failure to inform and consult:

I find that the Respondent wholly failed to inform or consult with the Complainant in relation to the transfer. An aggravating factor is the admitted failure of the Respondent to respond to the Complainant’s correspondence. This constituted a serious breach, depriving her of any meaningful opportunity to engage with the process or to explore alternatives that might have avoided the loss of her employment.

In the circumstances, I consider that compensation equivalent to the maximum of four weeks’ net remuneration is appropriate and proportionate.

€314.61 × 4 weeks = €1,258.44

I therefore award the Complainant €1,258.44 as a net sum in compensation for the breach of Regulation 8.

Total Award:

Accordingly, I award the Complainant a total net sum of €16,243.31, comprising:

€14,984.87 in respect of dismissal contrary to Regulation 5; and

€1,258.44 in respect of the failure to inform and consult contrary to Regulation 8.

CA-00071941-001: For the reasons outlined above I find that this complaint is not well founded.

CA-00071941-002: For the reasons outlined above I find that this complaint is well founded and I order the Respondent to pay the Complainant the total compensatory net sum of €16,243.31.  I also order that this amount is paid within 42 days of the date of this decision.

Constructive dismissal.  Transfer of undertakings Dismissal.  Transfer of Undertakings Information and Consultation.