Millar v CI Restaurant Ltd Department for Employment and ... TL O'Briens Ltd [2011] NIIT 00452

THE INDUSTRIAL TRIBUNALS

CASE REF: 452/11

CLAIMANT: Gavin Gerard Millar

RESPONDENTS: 1. CI Restaurant Ltd

2. Department for Employment and Learning

3. TL O’Briens Ltd

DECISION

(A) The claimant’s claims against CI Restaurant Ltd (“Oldco”) are not well-founded and accordingly they are dismissed.

(B) The claimant’s claims against TL O’Brien’s Ltd (“Newco”) are well-founded.

(C) The claimant’s appeal against the decision of the Department for Employment and Learning (“the Department”) is dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Buggy

Appearances:

The claimant appeared in person.

The respondent was represented by Mr N Cruikshanks of the Department.

REASONS

1. The claimant worked for Oldco in a restaurant in Limavady until November 2009. During that month, Oldco moved its operations to a restaurant at Queen’s Quay in Londonderry (“Derry”) and the claimant moved with it. From then onwards, until
27 June 2010, the claimant continued to work for Oldco, at the Queen’s Quay restaurant. On 27 June 2010, Oldco ceased to trade at those premises. Three weeks later, Newco started trading, again as a restaurant, at those premises. From July 2010 onwards, Newco was operating as a restaurant, just as Oldco had done, at the same premises and using the same facilities. The staff who had worked for Oldco at the premises until 27 July 2010 was all engaged as staff by the Newco, and all worked in the restaurant, for Newco, from July onwards.

2. Against that background, I was satisfied that the business of the restaurant, at Queen’s Quay, was the subject of a “relevant transfer” (within the meaning of the transfer of undertakings legislation) in mid-2010, whereby the relevant entity was transferred from Oldco to Newco; and I was also satisfied that the claimant was assigned to the relevant entity on the date of the transfer.

3. The effect of that transfer was that Newco became liable (and Oldco ceased to be liable) in respect of any employment debts which Oldco had accrued at the date of the transfer, unless one of the situations envisaged in Regulation 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the Regulations”) exist.

4. I am satisfied that none of the Regulation 8(7) situations exists in the circumstances of this case. In particular, I note that, although a winding up order has been made in respect of Oldco, the relevant winding up petition was presented only on 12 October 2010, long after the date of the putative transfer.

5. In these proceedings, the claimant makes claims in respect of wages and holiday pay. (He makes no claims in respect of notice pay or in respect of redundancy pay).

6. On the basis of his sworn testimony, and on the basis of the findings of fact and conclusions set out above, I am satisfied that the claimant is due wages and holiday pay from Newco.

7. But how much wages, and how much holiday pay, is his entitlement?

8. The claimant was paid in cash, both by Oldco and by Newco, except for one particular week. During this hearing, the claimant was unable to provide me with any evidence, other than his own oral testimony, which would support his contentions regarding the extent of his wages.

9. I consider it to be appropriate in the circumstances to adjourn the “remedies” part of this hearing, so as to give the claimant an opportunity to obtain corroborative evidence about the extent of his net pay. (This would be evidence which would tend to support the claimant’s version of events, regarding the amount which he was paid It could either consist of the oral testimony of somebody who knew how much the claimant was being paid, or it could consist of documentary evidence).,

10. The current position is that the claimant does not expect that Newco will have the funds to make a payment in respect of any tribunal award which may be made against it as a result of these proceedings. The Department has a potential role as the statutory guarantor in respect of wages and in respect of holiday pay. However, at present, the Department does not actually have such a role in respect of any debts which are due from Newco, because, currently, Newco is not formally insolvent (Oldco is formally insolvent, because of the winding up order which has been made in respect of it, but I have decided that Oldco’s previous employment debt liabilities have now transferred, because of the relevant transfer, to Newco).

11. Against that background, the claimant will no doubt wish to give careful consideration to the question of whether a remedies hearing will result in any practical benefit for him. (Obviously, even if he concludes that there is likely to be no resulting practical benefit, the claimant will still be entitled to pursue remedies, if he wishes to do so.

12. The claimant must notify the Secretary of tribunals, in writing, by 31 October 2011, whether or not he wants a remedies hearing to be held in this case, or whether he wishes to withdraw his proceedings.

Chairman:

Date and place of hearing: 28 July 2011, Belfast.

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions