224 / 244
GAZETTE
JULY-AUGUST
1979
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
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
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.
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.