The Gazette 1979

GAZETTE

JULY-AUGUST

1979

change when the Company became involved in 1972, Held (McWilliam J.) that the answers to the questions posed by the Tribunal were as follows:- (a) The Employee was not dismissed by the Employer in 1972 within the meaning of the Redundancy Payments Acts. (b) The liability for redundancy payments in respect of the entire period of employment passed to the Company. Minister for Labour v. Clarke, O'Dwyer and Aughrim Taverns L t d . — The High Co u rt (McWilliam J.) — 11 February 1977 — unreported.

renewal or re-engagement takes effect immediately on the ending of his employment under the previous Contract, or . . ." Reference was also made to the following authorities :- Lloyd v. Brassey [1968] 3 W.L.R. 526, [1969] 2 W.L.R. 310. Woodhouse v. Peter Brotherhood Lid. [1972] I.W.L.R. 401; [1972] 3 W.L.R. 215. Evender v. Guildford City Association [1975] 3 W.L.R. 251. Ubsdel v. Paterson [1973] 1 All E.R. 685. Camelo v. Sheerlyn Productions Ltd. [1976] I.L.R. 531. It was noted that under Section 19 and Schedule 3 of the 1967 Act if the Employee was taken not to have been dismissed by the Employer and the Company renewed the Contract or re-engaged him under a new Contract on terms and conditions which did not differ from those applicable to the earlier Contract with the Employer then the emp l oyee would on becoming redundant be entitled to redundancy payments from the Company based on the entire period of employment from 1967 onwards. Aga in it was no t ed t h at the stipulation of the 22 June 1972 (relating to previous employment from 1967) in so far as it excluded the provisions of the Acts was void. Per Mc William J. "Section 51 (of the 1967 Act) does not confine its scope to reductions in or the avoidance of Redundancy payments. It applies to the operation of any provision of the Act". Further, it was noted that Section 9(2) of the 1967 Act quoted above applied: Per Mc William J. "There was a change of ownership of the business within the meaning of Section 20 and the Employee's C o n t r a ct of emp l o yme nt was terminated in connection with that change so as to bring the provisions of the section into operation. The Company, as the new owner within the meaning of the section, re- engaged the Employee under a new Contract of employment so that, under sub-section (2) of Section 20, Section 9(2) took effect as if the re- e n g a g e m e nt h ad b e en a re- engagement by the Employer". Hence on the basis that the terms and conditions applicable to the employees' employment did not

employer, where that employee was offered and accepted employment with the Company. Any liability for redundancy payments in respect of the entire period of employment passed to the Company. Note: The Employee (Clarke) was emp l oy ed at t he Emp l o y e r 's (O'Dwyer) premises since 1967. The Employer sold the premises to the Company in 1972 and on the 22 June 1972 a Representative of the Company asked the Employee to take up employment with the Company immediately on the takeover. It was then also stipulated that the Company was only taking on the Employee on condition that the Company was not responsible for the period of the Employee's service (1967/1972) with the Employer in the event of future redundancy and the Employee accepted employment on these terms. The Employee then claimed to be entitled to redundancy payments on the termination of his employment with the Employer. The claim was refused by the Employer and when the Employee appealed to the Redundancy Appeals Tribunal that Body (for the Minister for Labour) referred the following questions to the High Court by way of Special Summons:- 1. Was the Employee dismissed by the Employer or 2. Was liability within the terms of the Redundancy Payments Acts 1967/71 for the entire service of the Employee passed to the Company as continuous service. The provisions of Sections 7 and 9 of the 1967 Act were considered as were Sections 20 (as amended by Section 5 of the 1971 Act) and Section 51 — the latter being the Section providing that an agreement to exclude the provisions of the Act shall be void. Section 9(2) of the 1967 Act provided:- "9. (2) An Employee shall not be taken for the purposes of this part to be dismissed by his employer if his Contract of employment is renewed or he is re-engaged by the same employer under a new Contract of employment, and, (a) in a case where the provisions of the Contract as renewed or of the new Contract as to the capacity and place in which he is employed and as to the other terms and conditions of his employment, so not differ from the corresponding provisions of the previous Con t r a c t, the

Summaries of judgments prepared by Henry St. John Blake, John F. Buckley, Mary Finlay, John M. O'Connor and edited by Michael V. O'Mahony.