Mr Chris Carroll (Represented by Claire Bruton B.L., Instructed by Anne O'Connell Solicitors) v Patricia Young (Represented by Fiona Campbell)
| Jurisdiction | Ireland |
| Judgment Date | 07 June 2022 |
| Judgment citation (vLex) | [2022] 6 JIEC 0701 |
| Docket Number | FULL RECOMMENDATION ADJ-00023574, CA-00028893-003, CA-00028893-004 DETERMINATION NO. TUD222 SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
TU/20/25
ADJ-00023574, CA-00028893-003, CA-00028893-004
DETERMINATION NO. TUD222
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003
Labour Court
Chairman: Mr Haugh
Employer Member: Mr O'Brien
Worker Member: Mr Bell
1. Appeal Of Adjudication Officer Decision No. ADJ-00023574, CA-00028893-003, CA-00028893-004
2. The Employer and the Worker both appealed the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 25 May 2022. The following is the Determination of the Court:
This is an appeal on behalf of Mr Chris Carroll (‘the Respondent’) and a cross-appeal by Ms Patricia Young (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00023574/CA-00028893-004, dated 21 May 2020) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’).
The Court heard the within appeal in Dublin on 25 May 2022 in conjunction with a related appeal and cross-appeal from a second decision of the same Adjudication Officer (ADJ-00023574/CA-00028893-003, also dated 21 May 2020) under the Unfair Dismissals Act 1977. The Court's determination in the latter appeal bears reference number UD/20/131.
The Adjudication Officer held that both complaints were well-founded. She awarded redress (by way of reinstatement) under the Unfair Dismissals Act 1977 only. The Complainant's appeal is confined to the matter of the form of redress only.
The Factual Matrix
The Complainant was employed as an assistant in the local post office in Kiltimagh, County Mayo, by Ms Marion Dunne for some twenty-one years until Ms Dunne ceased trading on Friday, 12 April 2019.
The Respondent opened a post office in a dedicated area within a Londis store he runs with members of his family on Monday, 15 April 2019. The Londis store is located approximately one hundred metres from the premises in which Ms Dunne had operated her post office business, on the same street.
The Complainant was on long term sick leave from her employment with Ms Dunne in the period immediately prior to the cessation of Ms Dunne's business as she was recuperating from an accident in which she badly damaged her femur. However, she was – she says – contracted to work two days per week at that time and her agreed weekly rate of pay was €175.00 per week. She had previously worked a three-day week for Ms Dunne.
The Complainant's employment ceased on Ms Dunne's last trading day, 12 April 2019. The Complainant did not receive any notice period or payment in lieu of notice from Ms Dunne as the latter was of the view that the Complainant's employment would transfer to the Respondent pursuant to the Regulations. Likewise, the Complainant did not receive payment from Ms Dunne for her accrued annual leave of eight days or for six public holidays outstanding to her.
Written Submissions of the Parties
The Complainant submitted that she had been assured by Ms Dunne that there would be a transfer or her employment to the Respondent's business. She also told the Court that she had had one meeting with the Respondent.
That meeting took place on the morning of 12 April 2019 when Mr Carroll, on his own initiative, called to the Complainant's home and advised her that he would not be employing her as his understanding was that there would be no transfer of undertaking from Ms Dunne's business to his.
The Respondent denies that a transfer of undertakings within the meaning of the Regulations took place between Ms Marion Dunne and himself in April 2019, or at all. In support of his appeal, the Respondent makes the following submissions:
No assets or employees transferred from Ms. Dunne to the Respondent;
When the Respondent's post office commenced trading on 15 April 2019 the staff employed there comprised the Respondent (as postmaster), the Respondent's wife along with a third member of staff, ‘CC’; CC had never worked in Ms. Dunne's post office;
There was no transfer of premises: the Respondent's post office operates from an entirely different location i.e. from within his existing Londis store and not the premises from which Ms. Dunne's post office previously operated;
The Respondent paid for all materials, labour, electrical and security services required for the construction of the dedicated post office space within his Londis store in accordance with specifications provided to him by An Post;
The bespoke premises comprises the primary asset necessary for the conduct of the business of a post office;
There are reduced monetary benefits for new postmasters by comparison to the arrangements that would have been in place with postmasters and post mistresses historically.
For instance, the commission on transactions (which is the primary source of a post master's income) has reduced. This means there is a lot more focus on sales in the Appellant's post office than there would have been or would have needed to be in the post office operated under the historical arrangement Ms. Dunne had the benefit of. This translates into much more active selling of all An Post services and in particular of An Post Insurance and An Post credit card services by both the Appellant himself and his staff and this is a key focus in the Appellant's business
All assets and equipment required by the Respondent to open a fully functioning post office were either procured and paid for by the Respondent himself or provided to the Respondent by An Post; those provided by An Post...
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