RPD2512

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044445 (CA-00054970-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 30 January 2024

in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place

on 01 July 2025.

The following is the Decision of the Court:

DECISION:

This is an appeal by Robert Kowcz (“the Complainant”) against an Adjudication Officer’s Decision (ADJ-00044445, CA-00054970-001, dated 8 January 2024), given under the Redundancy Payments Act 1967 (“the Act”) in a claim against Derry Court Company Limited (“the Respondent”). 

The Adjudication Officer held that the complaint was not well founded.

Mr Kowcz appealed that Decision to the Labour Court on 30 January 2024. A hearing of the Court was conducted in Dublin on 1 July 2025. The Court heard submissions and witness testimony from both parties. Mr Kowcz was assisted by a Polish interpreter. A linked appeal relating to a complaint under the Unfair Dismissals Act, 1977, scheduled for hearing on the same day, was withdrawn by Mr Kowcz at the hearing.

Background

The Complainant worked with a (named) contract cleaning provider based at the Central Mental Hospital in Dundrum, South County Dublin. In 2021, the Respondent was awarded the contract for cleaning services at the new National Forensic Mental Health Services (NFMHS) in Portrane. On 14 November 2022, the Central Mental Hospital in Dundrum relocated to the new site in Portrane and a transfer of undertakings took place between the (named) contract cleaning provider to the Respondent.

The Complainant submits that his role was made redundant and that the Respondent failed to offer him a suitable alternative role, as required under the Act.

The Respondent rejects that complaint, as it contends the Complainant was never employed by the Respondent and, therefore, is not covered by the Redundancy Payments Act 1967. It submits that the Complainant made the decision not to transfer his employment to the Respondent in full knowledge of the consequence of his actions and, as such, resigned his employment with the transferor.

Summary of the Complainant’s case

The Complainant worked as a cleaner supply driver for a (named) contract cleaning company for 17 years, fifteen of which were based at the Central Mental Hospital in Dundrum. The Respondent did not facilitate the transfer of the Complainant’s employment to Portrane to continue in his job as a cleaner supply driver. It appears that perhaps this role was taken inhouse by the Health Service Executive.

It is the Complainant's position that as his job was eliminated, the Respondent was obliged to offer him reasonable alternative employment. The Complainant was unable to accept what was offered by the Respondent and is entitled to a redundancy payment by reason of the removal of his job at the Central Mental Hospital Dundrum.

The Complainant’s decision to refuse offers of alternative employment made by the Respondent was reasonable, as those offers entailed changes to his terms and conditions of employment. While the Complainant accepts that an employee may become disentitled to a redundancy payment if he unreasonably refuses an offer of alternative employment, the Complainant was not offered a reasonable and comparable role to the position he held at the Central Mental Hospital, Dundrum.  A written contract dated 11 November 2022 for an industrial cleaning role, offered significantly inferior terms and conditions and would have involved the imposition of significant additional costs in terms of time and travel.

Summary of Respondent’s Case:

The Complainant decided not to transfer his employment to the Respondent in full knowledge of the consequences of his actions and as such, voluntarily resigned his employment, and at no time became an employee of the Respondent.

The Respondent was awarded the contract for cleaning services at the NFMHS site, which partially commenced in April 2021, however, the opening of the site was delayed until November 2022.

In July 2021, the Respondent wrote to the Transferor who had the contract for cleaning services in the CMH Dundrum, to request TUPE information. The Transferor provided details advising that the Complainant held a cleaner position.

On 4 October 2022, a meeting was held with all affected employees in CMH Dundrum to explain the TUPE process.  The Complainant was present at this meeting.

On 20 October 2022, a one-to-one meeting was held with the Complainant. He was given a letter explaining the TUPE process in which it clearly stated that failure to transfer his employment to the Respondent would indicate his resignation and would not attract a redundancy payment. The Complainant confirmed that he would not be transferring to the Respondent in Portrane.

The Complainant queried if the Respondent had any industrial cleaning roles available. The Complainant was subsequently offered an industrial cleaner role on an hourly rate of pay of €14 per hour. On 2 November 2022, the Complainant confirmed that he would take the industrial cleaner role. He was issued with a contract of employment for that role.

On 11 November 2022, the Complainant attended a training course for the industrial cleaning role at the Respondent's head office.  On 12 November 2022, he queried some details in the contract issued to him. It transpired that the contract terms provided were incorrect due to an administration error, and the Complainant was told the matter would be rectified. The Complainant advised that he was no longer happy to take the role and that he was staying with the Transferor.  It is the Respondent’s understanding that the Complainant had since secured a preferable role with the Transferor.

On 14 November 2022, the Central Mental Hospital Dundrum moved to the new site in Portrane, and the TUPE took place.

On 17 November 2022, the Complainant emailed the Respondent to say that he was due to attend industrial cleaning training that had been cancelled, there were errors in the industrial cleaning contract issued to him, and that he would like an offer with the same terms and conditions as he held in Dundrum. By reply, the Respondent noted that the Complainant had confirmed that he did not wish to transfer to the Respondent in Portrane, which had already taken place on 14 November 2022, and had not accepted an offer of an industrial cleaning role as a new employee. Referring to possible confusion on the Complainant's part, the Respondent advised him that it would extend the offer to transfer to Portrane under the same terms and conditions as per TUPE, if he wished to transfer. He was asked to confirm his position by close of business that day. The Respondent requested the Transferor's assistance in following up with the Complainant on their end.

On 18 November 2022, the Respondent replied to a letter from Dublin South Citizens Information Service, sent on behalf of the Complainant, explaining the entire circumstances and extending the timeframe of the offer until 1 December 2022. On 21 November 2022, the information officer responded to thank the Respondent for the clarification.

On 24 January 2023, the Respondent received correspondence from the Complainant’s solicitor stating that the Complainant is "entitled to claim his position was made redundant and he was not offered a suitable alternative position due to the new place of work." On 30 January 2023, the Respondent replied to say that the Complainant left his position voluntarily after he refused to transfer his employment to the Respondent. It was noted that due diligence provided by the Transferor, stated that the Complainant held a cleaning operative role.

The Complainant was clear that he did not wish to transfer employment to the Respondent. He was clearly advised that should he fail to transfer his employment to the Respondent, it would indicate his resignation and would not attract a redundancy payment.

Evidence of the Complainant

The Complainant attended a consultation meeting on 20 October 2022 and was told about his job transferring to Portrane. It was not a surprise, as he was aware of the transfer to Portrane for two years. His job involved driving and delivery duties but he was told that such duties were not available in Portrane, as only cleaning duties were to transfer. He was given a letter, dated 11 October 2022, about the transfer and told that his salary would not change.

He did not wish to transfer to Portrane, as the duties and the commute did not suit him. He did not accept the offer of moving to Portrane.

He enquired if the Respondent had industrial cleaning jobs available elsewhere and was offered work in three locations in Dublin. He attended training for the industrial clearing role at the Respondent’s headquarters on 11 November 2022 and was told to return the following week for more training. When he returned the following week, the training was cancelled. He was issued with a contract of employment for the industrial cleaning role, which he refused to sign as he had issues with some of the terms. He wanted the same terms and conditions that he had when working in Dundrum.

Under cross examination, the Complainant agreed that he confirmed to the Respondent that he would not transfer to Portrane at the consultation meeting on 20 October 2022. He accepted that because of that fact, they did not discuss details about the job transferring to Portrane. He accepted that he was advised the contract of employment issued to him for the industrial cleaning role contained errors, and that they would be rectified.

The Complainant acknowledged that when he sent an email to the Respondent on 17 November 2022, in which he stated that it was legally obliged to employ him on the same terms and conditions of employment. The

Respondent noted that he had refused to transfer to Portrane, but in case there had been confusion on his part, they re-offered him that position, with the same terms as provided under TUPE regulations.

The Complainant accepted that the Respondent had written to Citizens Information on 18 November 2022, in reply to a letter sent on his behalf, and offered to extend the deadline to consider the offer to transfer to the Respondent under his original terms and conditions of employment until 1 December 2020.

Mr Stephen Conway – Operations Manager

The Complainant’s name was provided to the Respondent as part of list of cleaners employed by the Transferor at the Central Mental Hospital site.

Mr Conway met with the Complainant on 20 October 2022, as part of the TUPE consultation process.  The Complainant said that he had no interest in transferring, so there was no discussion about the duties he undertook in his role.  Mr Conway explained to him that it was his decision if he did not want to TUPE, in which case it would be viewed as a resignation. Mr Conway suggested that he speak with the transferor about the possibility of other jobs. Subsequently, the Complainant returned to enquire about the possibility of other vacancies with the Respondent.

The Complainant was offered an industrial cleaning role on a day one basis. An issue arose with the contract that was sent to him.  That matter was clarified but the Complainant did not want to proceed with the role. 

On 14 November 2022, the transfer date, some employees transferred across, some chose not to transfer. Mr Conway was surprised by the Complainant’s email dated 17 November 2022 and was unclear whether he wanted to transfer his employment across to the Respondent or take an industrial cleaning role on a day one basis.  Mr Conway replied to clarify the position and give him the option to transfer. He then received a letter from Citizens Advice, so he extended the deadline to 1 December 2022. He received an acknowledgement to that letter but heard nothing further from the Complainant. 

The Law

The relevant sections of the Redundancy Payment Act 1967, as amended, are as follows:

Section 2 of the Redundancy Payments Act provides the following interpretations:

““employee” means a person of 16 years and upwards who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Health Service Executive, or education and training board shall be deemed to be an employee employed by the authority, Executive or education and training board, as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of contract of employment is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;”

Deliberation

The Complainant contends that when the Central Mental Hospital in Dundrum relocated to the new National Forensic Mental Health Services (NFMHS) in Portrane, his job as a cleaner/driver was eliminated. He contends that the driving duties which he undertook as part of his role may have been taken inhouse by the Health Service Executive. 

The Health Service Executive was not a party to the within proceedings. The only matter before the Court is an appeal by the Complainant against an Adjudication Officer’s decision given under the Redundancy Payments Act 1967 in a claim taken by him against the Respondent in this case. 

It is accepted that a transfer of undertakings (TUPE), in line with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, arose on 14 November 2022 when employees providing cleaning services at the Central Mental Hospital in Dundrum transferred employment to the Respondent. The Court heard evidence that the Transferor provided details to the Respondent advising that the Complainant held a cleaner position.

Once a transfer of employment arises, the transferee takes on the rights and obligations arising from the contract of employment that existed on the date of the transfer.

It is well settled in Irish law that where a transfer within the meaning of the Regulations occurs and where an employee objects to such a transfer, they are not obliged to transfer their employment.  In Symantec Limited v Leddy and Lyons [2009] IEHC 256, Edwards J determined that when such a transfer of undertakings occurs, an employee who refuses to transfer does not thereby become entitled to a redundancy payment under the 1967 Act.

The Complainant’s representative submits that Symantec, which was cited by both parties, is not relevant to the facts of this case as the Complainant did not refuse to transfer. However, that submission was contradicted by the Complainant’s own evidence.

The Complainant confirmed that prior to the transfer date of 14 November 2022, he confirmed to the Respondent, at a one-to-one meeting on 20 October 2022, that he would not transfer his employment to the Respondent’s contract in Portrane.

The Complainant confirmed that, after the transfer date, he declined to take up the Respondent’s subsequent offers to employ him on the same terms and conditions of employment in Portrane in line with the TUPE regulations.

It is clear from the Complainant’s own evidence, regardless of the reasons why, that he refused to transfer his employment to the Respondent

To come within the protections of the Act, a Complainant must be or have been an employee of the Respondent. Considering the facts presented to the Court in this case, the Court finds that the Complainant never entered into a contract of employment with the Respondent. It follows that the Complainant’s claim under the Act is not well-founded.

Decision

The Court determines that the complaint is not well founded, and that the Complainant is not entitled to a statutory redundancy payment:

The decision of the Adjudication Officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
18 AUGUST 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Amy Leonard, Court Secretary.