Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1667/16

 

 

 

CLAIMANT: Vitalijus Spudys

 

 

RESPONDENT: Department for the Economy

 

 

 

DECISION

 

(A) I am satisfied that, in respect of the purported dismissal of the claimant in October 2015, nobody is liable to make a redundancy payment to the claimant.

 

(B) The claimant's appeal under Article 233 of the Employment Rights (Northern Ireland) Order 1996 ("ERO") is dismissed.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Buggy

Appearances:

The claimant was self-represented.

The respondent Department ("the Department") was represented by Mr M McEvoy, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

 

REASONS

 

1. The claimant was employed by Aligreen Recycling Ltd ("the Old Company") throughout a lengthy period until 13 October 2015. At that time, the Old Company purported to dismiss him without notice. At that time, AGR Contracting Ltd ("the New Company") purported to offer him a new contract of employment, which he purported to accept. The claimant was thereafter employed by the New Company for a lengthy period. The Old Company was the subject of a creditors voluntary liquidation which began on 27 October 2015.

 

2. Throughout the period from October 2015 until June 2016, the Department for Employment and Learning was "the Department" within the meaning of the Employment Rights (Northern Ireland) Order 1996 ("ERO"). Since then, the Department for the Economy has been "the Department" for the purposes of that legislation.

 

3. The effect of Chapter VI of Part XII of ERO is that, in certain circumstances, "the Department" is the statutory guarantor in respect of redundancy pay debts.

 

4. The effect of Part XIV of ERO is that, if the debtor has gone into liquidation, "the Department" is the statutory guarantor in respect of unpaid wages, holiday pay and notice pay.

 

5. Pursuant to the statutory provisions which are specified at paragraphs 3 and 4 above, the claimant made an application to the Department for Employment and Learning, within the context of the purported dismissal of himself by the Old Company, for payments in respect of wages, holiday pay, notice pay and redundancy pay.

 

6. Those applications were refused by the Department because, according to the Department:

 

(1) there had been a "relevant transfer", within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPER");

 

(2) that transfer had begun prior to the October 2015 purported dismissal of the claimant; and

 

(3) at the time of that transfer, the claimant had been assigned to the transferred entity.

 

7. This is my Decision in respect of the claimant's appeals against those decisions of the Department.

 

8. By the time of this hearing, the claimant had received payment in full, in respect of his wages arrears, from the New Company. Accordingly, he did not need to pursue his appeal against the Department's decision in relation to his wages arrears application; that appeal was withdrawn. The claimant also withdrew his notice pay claim.

 

9. Accordingly, this was an appeal only in respect of the refusal of the Department of the claimant's applications for payments in respect of:

 

(1) holiday pay and

 

(2) redundancy pay.

 

10. For reasons which are explained at paragraphs 14-16 below, I have arrived at the following conclusions:

 

(1) On or prior to 13 October 2015, there was a relevant transfer (within the meaning of TUPER) of an entity to which the claimant was then assigned.

 

(2) The Old Company was the transferor under that transfer.

 

(3) The New Company was the transferee under that transfer.

 

(4) The purported dismissal of the claimant was legally ineffective. (He did not object to becoming employed by the New Company. Accordingly, although he did become employed by the New Company, he became so employed pursuant to the provisions of paragraph (1) of regulation 4 of TUPER).

 

11. Because no actual termination of the claimant's employment occurred in October 2015 (and because, instead, he merely transferred to the employment of the New Company at that time), no holiday pay debt was owed to the claimant by the Old Company at any time in October 2015. Instead, at the time of the transfer of his employment to the New Company, the New Company became responsible for crediting the claimant with leave entitlements (as distinct from being responsible for holiday pay entitlements). For that reason, the claimant's appeal in relation to holiday pay fails.

 

12. The claimant could only become entitled to redundancy pay in respect of the events of October 2015 if he had been dismissed at that time. However, in reality, he was not dismissed. Instead, he became an employee of the New Company, at that time, by operation of law (because of the effect of regulation 4(1) of TUPER).

 

13. I have arrived at the conclusions set out at paragraph 10 above on the basis of the claimant's oral testimony in these proceedings.

 

14. Immediately prior to the purported dismissal, the claimant was employed by the Old Company and, at that time, his main role was to "sort" recycled clothing and bed linen. The claimant began to work for the New Company, later during the month of October 2015. From then onwards, and throughout his period of employment by the New Company, he was engaged on exactly the same types of tasks as he had been engaged in when he had been working for the Old Company. Nearly all the staff who had been employed by the Old Company at the beginning of October 2015 were offered and accepted employment with the New Company, without any break between their periods of employment in the Old Company and their periods of employment in the New Company. The circle of customers of the New Company was practically identical to the circle of customers of the Old Company. The management of the relevant business of the New Company, in practice, was carried out by the people who had undertaken that role in respect of the relevant business of the Old Company.

 

15. In arriving at the conclusions set out at paragraph 10 above, I have taken account of the fact that the New Company operated from premises which were different from the premises from which the Old Company had operated. In that context, I also noted that the Old Company and the New Company both used presses in the context of sorting out and preparing the relevant recycled clothing; and, in deciding on the "relevant transfer" issue, I have assumed that the presses of the New Company were different from the presses of the Old Company.

 

16. The practical implications of the foregoing determinations are as follows.

 

(1) If the New Company did not recognise leave entitlements, in respect of untaken leave, which the claimant had built up while working for the Old Company, and if those leave entitlements were contractual entitlements, he may still be in time to make a claim against the New Company, in respect of those entitlements, in the County Court.

 

(2) If he was not paid as much wages by the New Company as he had been paid by the Old Company, he may still be in time to make a wages claim against the New Company in the County Court.

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 30 June 2017, Belfast

 

 

Date decision recorded in register and issued to parties: