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TU9/2012
EMPLOYMENTAPPEALS TRIBUNAL
APPEAL(S) OF:
EMPLOYER -appellant
TU1-TU9/2012 against the recommendation of the Rights Commissioner in the case of:
EMPLOYEE -respondent 1
EMPLOYEE -respondent 2
EMPLOYEE -respondent 3
EMPLOYEE -respondent 4
EMPLOYEE -respondent 5
EMPLOYEE -respondent 6
EMPLOYEE -respondent 7
EMPLOYEE -respondent 8
EMPLOYEE -respondent 9 under
CASE NO
Chairman: Ms D Donovan B.L.
Members: Mr J Browne
Mr A. Butler
heard this appeal at Carlow on 1 and 2 July 2013
Representation:
Appellant:
Respondent:
Background:
This appeal came before the Tribunal by way of an employer (the appellant) appealing against the Decision of a Rights Commissioner under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (references: r-112406-tu-11/TB, r-112415-tu-11/TB, r-112425-tu-11/TB, r112431-tu-11/TB, r-112438-tu-11/TB, r-112445-tu-11/TB, r-112449-tu-11/TB, r-112459-tu-11/TB and r112464-tu-11/TB).
The employer in this case operated a café/restaurant The employer leased the premises within which the business operated There was a dispute between the parties as to when a particular meeting was held The employees maintained the meeting was held on 14 February 2011, while the employer stated the meeting was held on 4 February 2011
The employer (DP) gave evidence that by October 2010 the business was in serious rent arrears Sales had decreased by 40% and he made efforts with the landlord to re-negotiate the rent but without success The landlord commenced bankruptcy proceedings against DP
In January 2011 the landlord asked to meet with DP and initially DP hoped that the meeting would be about re-negotiating the amount of rent However, at the meeting on 28 January 2011 he was advised that the landlord was taking possession of the premises on 7 March 2011 and intended to re-let it DP had to vacate the premises within two weeks of the date of this meeting and for this reason he was unable to fulfil all of his obligations to the employees under the Transfer of Undertakings Regulations
DP held a meeting with the staff on 4 February 2011 and informed them that the landlord was repossessing the unit. He also stated that the landlord had told DP that he was to make the employees redundant as the landlord could not seek a new tenant while DP’s business was still in operation At the meeting one of the employees raised the issue of whether or not the employees would remain employed due to the Transfer of Undertakings Regulations DP did not believe that there was a transfer of undertakings as the landlord had said he was going to secure a new tenant At the time DP did not believe that the landlord would be successful in securing a new tenant
Subsequently, an employee brought an advertisement in a local paper to his attention It appeared in the paper on 22 February 2011 and advertised positions in a new restaurant/coffee shop in the same shopping centre within which DP operated his business DP did not link the advertisement to the unit within which his business operated and he was surprised when an employee told him she had secured a new job for a business that the landlord was opening in the same unit
As a result of hearing this, DP contacted the landlord on 5 March 2011 and impressed upon him that if he intended to re-open the restaurant in the same premises then a transfer of undertakings occurred The landlord did not accept this to be the case and subsequently took possession of the unit on Monday, 7 March 2011
DP told the employees that they should attend for work as normal on 7 March 2011 He was also present to hand over keys to the landlord When he was there he observed new members of staff arriving and observed that his head chef was retained DP met with the other employees and told them they were entitled to go into the restaurant as there was a transfer of undertakings However, the landlord asked the employees to leave the premises.
DP held a further meeting with the employees on 12 March 2011 and stated that he was willing to make a redundancy payment to them as the landlord had refused to transfer their employment The employees informed him that their legal advice was not to accept the redundancy payment offered as they were entitled to their jobs back by virtue of the Transfer of Undertakings Regulations
The Tribunal heard evidence from a number of employees that they were informed at the meeting in February 2011 that DP was vacating the lease but that they could re-apply for their positions if there was a transfer of undertakings JB was assured by DP not to worry about the positions being advertised as this had to be done for legal reasons JB applied for a position with the transferee but heard nothing further JB was aware that three individuals were retained by the transferee and who did not have to re-apply for their positions During cross-examination JB refuted that DP had met with the staff in March 2011 and offered to pay redundancy
AM gave evidence that at the meeting on 14 February 2011, DP informed the staff that the owners were taking back the café and the employees could re-apply for their jobs AM raised the issue of a transfer of undertakings as she had previous experience of such a situation but DP did not provide any information on this AM did not recall DP asking them to elect a representative but the employees tended to talk to the manager about the situation. When AM exited the meeting she was under the impression that anyone entitled to redundancy would be paid it.
MW gave evidence that DP had said he had known of the situation prior to Christmas 2010
SD gave evidence that DP did not mention redundancy in the meeting on 14 February 2011
Determination:
Having considered the evidence adduced at the hearing the Tribunal finds that the appellant employer met with and consulted with the respondent employees on 14 February 2011 regarding the forfeiture of his lease and informed them that the implication for them was that they would be made redundant The Tribunal finds that at this meeting one of the respondent employees, AM, raised the issue of transfer of undertakings and the appellant employer told them that if and when the premises would be re-let it would be a transfer of undertakings and that they would be entitled to continue their employment The Tribunal accepts that the appellant employer at that time believed that the premises would be difficult to re-let and accordingly there was no question of a transfer of undertakings in the foreseeable future.
The Tribunal finds that it is clear from the email of the appellant employer that he knew on 3 February 2011 that his lease was being forfeited However, the Tribunal accepts that the appellant employer was not aware of the proposed transfer of undertakings until either the advertisement of 22 February 2011 or when he was informed by one of his employees that she had secured a position pursuant to the said advertisement and that it was in the premises being forfeited by the appellant employer At this stage the Tribunal finds it was not reasonably practicable for the appellant employer (the transferor in law) to either supply information of the proposed transfer or to engage in consultation within the 30 day period or, in any event, in good time before the transfer is carried out as is required by regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131/2003).
The Tribunal accepts that the appellant employer took up the issue of the proposed transfer of undertakings with the lessor and did the best he could to protect the employment of the respondent employees
The Tribunal is satisfied that the appellant employer gave the respondent employees such information as was known to him as soon as he practicably could and advised them that they were entitled to continue in employment with the transferee and by so doing complied with all of his obligations under regulation 8,
including 8(c) and 8(d), albeit outside the timeframe provided in the Regulations and the reason for this was, as noted above, because the appellant employer did not know about the proposed transfer of undertakings 30 days prior to the transfer taking place.
The Tribunal finds that one of the respondent employees effectively acted as a representative for the employees and accordingly there was no need for the appellant employer to furnish each employee with a statement in writing as is required by section 8(6) of the Regulations of 2003
Accordingly, the appeal of the appellant/employer succeeds and the Tribunal sets aside the decision of the Rights Commissioner dated 29 December 2011 (references: r-112406-tu-11/TB, r-112415-tu-11/TB, r112425-tu-11/TB, r-112431-tu-11/TB, r-112438-tu-11/TB, r-112445-tu-11/TB, r-112449-tu-11/TB, r112459-tu-11/TB and r-112464-tu-11/TB). Sealed with the Seal of the Employment Appeals Tribunal