Case Number: ADJ-00000003. Workplace Relations Commission

CourtWorkplace Relations Commission
Date25 April 2017
Docket NumberADJ-00000003
PartiesA Café Worker V A Cafe

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00000003

Complaints for Resolution:

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-00000008-001

01/10/2015

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-00000008-002

01/10/2015

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

CA-00000008-003

01/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00000008-004

01/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00000008-005

01/10/2015

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

CA-00000008-006

01/10/2015

Date of Adjudication Hearing: 16/01/2017

Workplace Relations Commission Adjudication Officer: Louise Boyle

Location of Hearing: Galway Maldon Hotel, Oranmore

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 77 of the Employment Equality Acts and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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 complaint.

Background:

The claim under Section 77 of the Employment Equality Act 1998 was withdrawn. The complainant worked for a business owner who operated as a cafe and who sold the lease to the respondent who operated as an Italian cafe. The respondent was unrepresented and was happy to proceed unrepresented. A preliminary issue arose as the respondent disputed that the Protection of Employees on Transfer of Undertakings (hereinafter referred to as TUPE) Regulations applied. The respondent also disputed: that the complainant was dismissed, that the complainant was dismissed owing to the transfer, that her terms and conditions were reduced owing to the transfer, that a redundancy situation existed or that the complainant had entitlement to minimum notice
Summary of the Complainant’s Case – Preliminary Issue: Does the TUPE Regulations apply?

The complainant alleged that she commenced employment with the previous owner on 9 April 2013 working in her café from approximately 0830-1730 five days a week. She advised that around 8th March 2015 she was told that somebody else was going to be involved in the business as a ‘partnership’ and that the previous owner would be still around. It transpired that the business had been completely taken over by the respondent who came on site and talked to her about menus on approximately 12th March 2015. The complainant was issued with a P45 by the other owner dated 27 March 2015 as she was told the respondent’s accountant had said this should happen. She was told the new café would be closed for about 5 days while renovations were carried out when in fact the renovations took approximately 19 days. She called in a few times to see when it would be open. She started work with the respondent on approximately 1st April 2015 earning €9 per hour compared to €8.65 per hour earned previously, working approximately the same hours and getting the place ready after the renovations. She said it appeared to be accepted that she would work with the new owner and that she was not interviewed for the job nor was there any discussion around pay. The owners of the original café did not continue working with the respondent. She never received a contract and there was no mention of probation. She said the menu was similar with sandwiches, pizza and pasta and the type of customers was similar to previously. While the place had been repainted, furniture was same, coffee machine was same with a new pizza oven and new fridge and while she had received a P45 from the previous owner this did not prove anything and cited ADJ00001322 to support this.

Four weeks after the complainant took over the business she was advised that owing to business not being good there was only 3 hours work per day available for her. She took this to mean her job was gone and finished up work on 1st May. She maintained that because she was only offered 3 hours per day she had no choice but to resign. Case law of Spijkers v Gebroeders Benedik Abbatoir CV [1986]CMLR 1119 was cited with regards to “Spijkers Criteria” when it comes to deciding whether there has been a transfer of an undertaking namely:

  1. was the undertaking a stable undertaking with an ongoing life of its own?
  1. has the entity retained its identity?
  2. have some or all of the staff been taken over by the new employer?
  3. has the customer base transferred?
  4. are the activities post transfer similar to those carried on before the transfer?
  5. whether there was an interruption of the activity
  6. has there been a transfer of assets?

It was maintained that the instant case satisfied the above criteria and that as such the complainant had established her entitlement to be covered by TUPE regulation.

Summary of the Respondent’s Case - Preliminary Issue: Application of TUPE Regulations

The Respondent denied that TUPE Regulations would apply in this case. He stated that the previous sandwich type café was different then the Italian type café that was opened up by him. It was stated that the previous owner had committed fraud by not disclosing that other employees might have to be taken on and that the respondent hired the complainant because she had previous experience. His understanding was that it was a trial arrangement and that he had made this clear to the complainant. He stated that he had to shut the business down for a period of time as business was not going well and that he and his wife had a personal bereavement and that the complainant should have shown more consideration to this. He stated it was a very difficult time for him and that he had...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT