EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
– appellant 1 TU49/2013
– appellant 2 TU50/2013
against the recommendation of the Rights Commissioner in the case of:
OCS One Complete Solution
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C
Members: D. Peakin
heard this appeal at Dublin on the 6th November 2014 and the 4th March 2015
Appellant(s) : Mr. William Hamilton, Mandate Trade Union,
O'Lehane House, 9 Cavendish Row, Dublin 1
Mr Tiernan Doherty, IBEC, Confederation House, 84/88 Lower Baggot Street, Dublin 2 (on the 6 November 2014.
Mr Eamon McCoy, IBEC, Confederation House, 84/88 Lower Baggot Street, Dublin 2 (on the 4 March 2015).
The decision of the Tribunal was as follows:-
This case came before the Tribunal by way of the employees appealing the decision of a Rights Commissioner under the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 Reference –R-132942-TU-13/JW.
The appellants are employed as security officers at the Dundalk Shopping Centre. Appellant 1 has worked at the shopping centre since 1988 and appellant 2 has worked at the shopping centre since 1982. In August 2012 their employment transferred to the respondent company. The appellants representative submitted that assurances had been given by the respondent that the terms and conditions of the employees would not be changed. A collective agreement which came into effect from the 1 January 2008 with the original employer (DNG) was opened to the Tribunal.
The collective agreement made specific provision for Christmas and Sundays and referred to the appellants in this case. It stated that “JR and TR will not work first three Christmas Sundays at 4 hours per shift (20 hours each), but will continue to work the last three Sundays at 12 hours per shift. Buy out of the first three Sundays at the rate of 1.5 years was agreed”.
The respondent’s representative submitted that in the collective agreement in the section Christmas and Sundays a second provision stated “management reserve the right to staff the centre as required during the Christmas period while adhering to prior union agreements regarding minimum hours”.
The respondent’s representative further submitted that the shopping centre has now only one tenant and is in a run down state. This was not disputed by the appellant’s representative however it was submitted that the shopping centre has been in a run down state for many years.
The Tribunal having considered the submissions by both parties in this case determine that the case turns on the interpretation of the collective agreement which was agreed and accepted in December 2007. The Tribunal finds that any ambiguity between section 1 and section 2 of the Christmas and Sundays provision of the agreement must be determined in favour of section 1 it being the more definitive and precise. Section 2 which is a saver clause falls in this case.
The Tribunal sets aside the decision of the Rights Commissioner and awards the appellants the sum of €2630.00 each under the Protection of Employees on Transfer of Undertakings Regulations 2003.
Sealed with the Seal of the
Employment Appeals Tribunal