SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003
SODEXO IRELAND LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. An appeal of an Adjudication Officer's Decision No. ADJ-00002744.
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court on the 3rd October 2016. A Labour Court hearing took place on the 6th December 2016. The following is the Court's Determination:
Mr Clarke the Complainant worked for the Sodexo Ireland Ltd (the Respondent) as a chef commencing on 29 June 1999. In 2008 he was assigned to work in All Hallows College. Initially he was employed on a 40 hour week contract. However on May 1 2008 his contract was altered due to a downturn in work. His new contract provided for an 8+ hours assignment. It was common case that this was given effect to as providing for 16 hours work each weekend; 8 of which were paid at flat rate and 8 paid at time plus one half. The Complainant submits that this amounted to a fixed rate for the weekend.
Simultaneously he was offered a second contract that provided for him to be offered work as and when it arose with an option of accepting or rejecting any assignment offered. He was equally free to apply for whatever work was available as and when it suited his circumstances. It provided that no consequences would flow from either side refusing an offer or request.
The Complainant did not agree to the terms set out in the second contract. He sought compensatory hours sufficient to bring him back to a 40 hour week. He submits that he continued this dispute to the present date.
The final exchange of correspondence opened to the Court is a letter dated 3 February 2015. That letter stated the following
- “Further to your query in relation to your availability for during the week, I would like to confirm that you are currently on a weekend contract in All Hallows and no longer on the support team.”
In 2016 the Company was advised verbally on January 4ththat it had lost the catering contract with DCU, the entity into which All Hallows had been subsumed.
The Company had a consultation meeting with all staff affected on 8 January 2016. By letter of 18 January it notified all staff in writing that the contracts of employment would transfer on 27 January to the new entity. It stated in the letter that the new entity would
“…take on responsibility for the complainant’s contract of employment as it had originally “ drafted.
That “ service with Sodexo would count as continuous employment with the new employer”
And that “ no steps would be taken to terminate his employment because of the transfer” and
Finally that a refusal to transfer would amount to a resignation.
The Respondent copied all relevant pay and contractual details to the new employer.
The Complainants Case
The Complainant submits that
1.The Respondent failed to properly consult with him regarding the transfer and
2.The Respondent failed to transfer full details of his contract of employment including the disputed elements that were live at that time.
The Respondent submits that it complied with all of the requirements of the regulations.
It further submits that it copied all contracts on file to the new employer including the no longer active as and when required contract of employment.
The transfer of undertakings is governed in Irish law by
S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.
In relevant part it states
(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.
The Regulations place an obligation on the transferor and the transferee to take the following actions
- (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -
(a) the date or proposed date of the transfer;
b) the reasons for the transfer;
(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them
(d) any measures envisaged in relation to the employees.
The Complainant states that the Respondent failed to properly consult with him within the meaning of the Regulations.
The Court finds that the Respondent discharged its obligations under the Regulations. It met with the Complainant by way of a meeting with staff on 8th January 2016 and corresponded with him on 18 January 2016 setting out all of the information relevant to the transfer and required by the Regulations. The Complainant states that he did not receive that letter. However having heard from both sides the Court finds that the Complainant’s files are disorganised and incomplete. The Respondent’s record of events were consistent and complete. Accordingly the Court finds, on the balance of probability, that the Complainant was provided with the letter dated 28 January 2016 and was accordingly notified of and consulted with regarding the proposed transfer.
The Complainant states that the respondent did not transfer all relevant documents to the other side.
The Respondent states that it provided all relevant material that was on file relating to the Complainant including copies of all contracts of employment.
The Respondent provided the Court with copies of all of the relevant contacts of employment that were transferred to the Transferee. The Court finds that these included all relevant contracts of employment. In that regard the Court finds that at the time of transfer the Complainant had one contract of employment with the Respondent that provided for 8+ hours of work per week. The Court further finds that this contract had been administered as a 16 hour contract for weekend work which provided for 8 hours at normal hourly rate of pay and 8 hours paid at a premium rate of 1.5 times the normal hourly rate.
The Court finds that the second contract was no longer active as set out in the letter of 3 February 2015 referred to above.
Accordingly the Court finds that there is no evidence before it that the Respondent did not transfer all relevant information to the Respondent.
The Court determines that the complaint is not well founded. The decision of the Adjudication Officer is affirmed. The appeal is not allowed.
Signed on behalf of the Labour Court
19th December, 2016.Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.