TUD251

TU/24/1

DECISION  NO.  TUD251

PARTIES:

DIVISION:

Chairman:	Mr Foley
Employer Member:	Mr O'Brien
Worker Member:	Ms Hannick

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045747 (CA-00054368-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’) on 11 March 2024.  Labour Court hearings took place on 15 January 2025. 

The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal of a decision of an Adjudication Officer in a complaint made by Jelena Jevsejeva (the Appellant) of an alleged breach of Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulation).

The Adjudication Officer decided that the complaint of the Appellant was not well founded.

The Law

S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provide at Regulation 4 as follows:

Rights and obligations.

4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

(3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors’ benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts.

(4) (a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003 are protected under those Acts.

(b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003, are protected.

Background

It is common case that a transfer of undertakings took place on 14th November 2022 between the Appellant’s employer and the Respondent. It is also common case that, at the same time, the client whose site the Appellant was assigned to work at transferred its physical location from Dundrum to Portrane.

The submissions of the parties and the documentation submitted make clear that prior to the transfer taking place the worker indicated to the Transferor that, for stated reasons, she did not wish her employment to transfer to the Transferee and that she would not be taking up a position with the Transferee. This is also clear from the fact that prior to and after the transfer, the Transferor continued to offer positions to the Appellant which she declined to accept for stated reasons.

Finally, although not relevant to the matter before the Court, the Appellant took up employment with the Transferee in January 2023.

Neither party chose to proffer testimony to the Court when invited to do so at the hearing.

Summary submission of the Appellant

The Appellant submitted that the Respondent was obliged to ensure that her employment transferred to it on 14th November 2022, and its failure to so ensure that happened was in contravention of the Regulation. The Respondent should be required to pay her wages for the period from 18th November 2022 until she took up an offer of employment with the Respondent in January 2023.

Summary submission of the Respondent

The Respondent submitted that it communicated fully with the Appellant prior to the transfer of undertakings on 14th November, including to advise her that she would be required to report to the client site on 14th November 2022, but the Appellant made clear that she did not wish her employment to transfer to the Transferee. Ultimately the Appellant, separately, did take up employment with the Respondent in January 2023 following her refusal of offers of employment with the Transferor.

Decision

The Court has examined the comprehensive submissions of the parties and is satisfied that the Appellant declined to accept a transfer of her employment to the Transferee, and consequently the within appeal must fail. The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
AL	______________________
27th January 2025	Chairman

NOTE

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