Westman Holdings Ltd v McCormack

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-SC 2491
• Court: Supreme Court
• Docket Number: [1991 No. 126P]
• Date: 01 January 1992

WESTMAN HOLDINGS LTD v. MCCORMACK

WESTMAN HOLDINGS LIMITED

Plaintiff/

Respondent

and

AIDAN McCORMACK, NOEL McCORMACK; FRANK MORGAN, JOHN McCRAMER,GERRY SMITH, MARTIN KAVANAGH, KEITH WHITFORT, IRISH NATIONAL UNION OFGROCERS AND ALLIED TRADES ASSISTANTS

Defendants/

Appellants

1991 WJSC-SC 2491

Finlay C.J.

O'Flaherty J.

Egan J.

126/91

THE SUPREME COURT

Synopsis:

INJUNCTION

Interlocutory

Fair question - Convenience - Balance - Premises - Sale - Former employees of vendor - Picketing - Purchaser's action - Restraint pending trial of action - Council Directive No. 77/187/EEC of 14th February, 1977 - European Communities (Safeguarding of Employees" Rights on Transfer of Undertaking) Regulations, 1980 (S.I. 306), article 3 - Industrial Relations Act, 1990, ss. 8, 11 - (126/91 - Supreme Court - 14/5/91) [1992] 1 I.R. 151 1991 ILRM 833

|Westman Holdings Ltd. v. McCormack|

Citations:

EUROPEAN COMMUNITIES (SAFEGUARDING OF EMPLOYEES RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980

EEC DIR 77/187

INDUSTRIAL RELATIONS ACT 1990 S11(1)

INDUSTRIAL RELATIONS ACT 1990 S8

EEC DIR 77/187 ART 1.1

EEC DIR 77/187 ART 3.1

EEC DIR 77/187 ART 4.1

EUROPEAN COMMUNITIES (SAFEGUARDING OF EMPLOYEES RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980 ART 3

EUROPEAN COMMUNITIES (SAFEGUARDING OF EMPLOYEES RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980 ART 5.1

CAMPUS OIL LTD V MIN FOR INDUSTRY (NO 2) 1983 IR 88

INDUSTRIAL RELATIONS ACT 1990 S13

1 JUDGMENT delivered on the 14th day of May 1991by FINLAY C.J. [NEM DISS]

2 This is an appeal by the second to seventh named Defendants, inclusive (the worker Defendants) against an order made in the High Court by Lardner J. on the 19th April 1991, by way of interlocutory injunction restraining the Defendants from picketing the Plaintiff's premises at Nassau Street, in the City ofDublin. The facts out of which the case arises, which are not in dispute, are as follows. The worker Defendants were prior to April 1991 employed by a company named Alma Taverns as bar and restaurant staff in a licensed premises, restaurant and nightclub, known as Judge Roy Bean's, in Nassau Street, Dublin. Alma Taverns occupied those premises on a lease which expired on the 1st March 1991. On that date the business was taken over by their immediate landlords, Westhall Property Company Limited, who took over also the employment of the workerDefendants.

3 On the 15th March 1991 Westhall Property Company Limited entered into a contract with the Plaintiffs to sell to them the premises, together with fittings and fixtures, and with the benefit of the licence. Westhall Property Company Limited purported to terminate the employment of all its employees in the premises, including the worker Defendants, and business ceased on the 5th April 1991. Immediately prior to the cesserofthe business, each of the worker Defendants, on whose behalf a trade union official negotiated with Westhall Property Company Limited, received a sum of money and signed a form of discharge acknowledging the receipt and stating that it was in total discharge of all claims due to such person by Westhall Property Company Limited/Alma Taverns Limited, arising out of the Defendants" employment and without admission of liability. The discharge also contained a statement that the signatory had no further claims on the two companies, their directors, their families or any of their dependants of any kind whatsoever. These negotiations had been preceded by a series of notices communicated to the worker Defendants on behalf of Westhall Property Company Limited, which refer to the "sale of the business".

4 Immediately after the execution of this discharge on behalf of the worker Defendants an official of the trade union, which is the last named Defendant, made a claim on the Plaintiffs of the entitlement of each ofthe persons formerly employed by Westhall Property Company Limited to continue in the employment of the Plaintiffs which, it was asserted, arose pursuant to Statutory Instrument No. 306 of 1980, which implemented the Council Directive No. 77/187/EEC of the 14th February 1977, which Instrument is entitled: "European Communities (Safeguarding of Employees" Rights on Transfer of Undertakings) Regulations 1980". On the Plaintiff's behalf this claim was rejected; the Defendants were not employed, and they then commenced to picket the premises. The picket was an official picket authorised by their trade union. An interim order was made, on an ex parte application by the Plaintiffs, by Blayney J. on the 11th April 1991, restraining the picket, and the picket was then removed. Subsequently the applicaltion for an interlocutory order was made, and that is still in force.

5 On these facts I am satisfied that two issues of law arise to be tried in this action. The first is aquestion as to whether the Defendants" action in picketing these premises is protected by the provisions of Section 11(1) of the Industrial Relations Act 1990, on the basis that the Plaintiffs must be deemed, within the meaning of that Act, to be "their employer". The second issue which in a sense may become related to that issue, is the question as to whether the transaction which took place between the Plaintiff and the Westhall Property Company Limited constitutes a transfer of business or undertaking, within the meaning of the Council Directive and Statutory Instrument, and, if it does, whether by virtue of the provisions of those regulations a novation of the contract between the worker Defendants and Westhall Property Company Limited has occurred, with the consequence that the Plaintiff must be deemed in law to be the employer of the worker Defendants, and, acordingly, their action in picketing the premises is protected on that basis under Section 11(1) of the 1990Act.

Section 8

"In this Part, save where the context otherwise requires -

"employer" means a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person;

"trade dispute" means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of...