EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Tomasz Melnyk -appellant
against the recommendation of the Rights Commissioner in the case of:
Woods Property Maintenance Limited -respondent
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this appeal at Carlow on 2nd December 2015
Appellant: In person
Respondent: DW and PW of the company.
This appeal came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner Decision (reference: r-138901-tu-13/RG).
A Polish translator was provided by the Tribunal for hearing.
A transfer of undertaking occurred to the respondent company on 14th October 2013. The respondent company employs 40 people. As part of the transfer the respondent company became responsible for a shopping centre maintenance contract. The appellant was based at that site and worked 19 hours per week at the time of the transfer.
DW, witness for the respondent, gave evidence that following the transfer he realised that the appellant had not attained a driving license. It was the respondent’s case that the appellant’s duties necessitated him driving on a public road twice daily between the two phases of the shopping centre. When this matter was addressed with the appellant he made a request to carry out the work without using the vehicle but the shopping centre management refused this request on health and safety grounds. In order to continue to provide the maintenance service the respondent reduced the appellant’s hours by 4 hours per week as a result.
It was the appellant’s evidence that his hours were reduced by 26 hours per month without explanation. He queried this with DW and the supervisor but it was some time before he received the explanation that the cut in hours was due to the fact that he did not have a driving license. The appellant stated that the vehicle used by the respondent was different from that used prior to the transfer and he had not needed the vehicle to carry out his duties prior to the transfer. This was disputed by DW for the respondent.
Extra hours were offered to the appellant but there was a dispute between the parties as to when these hours were offered to the appellant. DW stated it was prior to the Rights Commissioner hearing while the appellant stated it was following receipt of the Rights Commissioner Decision. In any event it was common case that the company offered the appellant extra hours at the shopping centre site. It was the appellant’s evidence that the hours offered meant he would not finish work until 10.30pm which was unsuitable for family reasons as his partner works at night. When he worked 19 hours the appellant finished work at 7pm. The appellant therefore had to refuse the offer of those extra hours. DW gave evidence that he understood the reason for the refusal.
It was DW’s evidence that when the Rights Commissioner’s Decision issued to the parties, the respondent was in the midst of changing the appellant to another site which was a school within walking distance of the town. The appellant would have 15 hours work per week with the possibility of some extra hours. The director thought this position suitable for the appellant. However, the appellant was absent on sick leave from the date that he was due to start in that position. The appellant remained on sick leave from March to August 2015. By the time the appellant returned from sick leave the respondent had lost the tender to provide maintenance services to that school.
However, the company had secured a tender at another school and the appellant was offered 15 hours per week at that site from 1st September 2015. The appellant remained in that position until 2.5 weeks prior to the Tribunal hearing. He cycled to work each day to the school which was approximately 4km from the town. However, it was the director’s evidence that the company had no option but to remove the appellant from that site as a number of complaints were received about the appellant. The appellant stated there were no issues with his work until he lodged the claim to the Rights Commissioner’s service. From that time onward he began to receive complaints about his work. It was DW’s evidence that despite efforts to rectify matters with the appellant (including a performance plan) the complaints continued.
The appellant was offered a position in a smaller country school during November 2015. The respondent offered to arrange transport for the first three days. However, the appellant resigned before taking up that offer. It was the appellant’s evidence that this position would have required him cycling 12 km to work. He was unsure if he would be able to do this due to an issue with his knee for which he will undergo surgery in December 2015. The respondent relied on a letter of resignation signed by the appellant in November 2015 and stated that the company could not implement the Rights Commissioner Decision as the appellant had resigned.
The appellant wanted to return to the shopping centre site and would have agreed to return even for 15 hours per week. DW stated there were no vacancies there or at any other contracts the respondent held in the town area. The respondent also relied on clause three of the contract of employment which states that an employee will normally be required to work at various sites or business premises. In reply to questions from the Tribunal, DW stated that he could not change staff from the shopping centre to the country school as the employees at the shopping centre worked 39 hours per week.
The Tribunal has carefully considered the totality of the evidence and sees no reason to interfere with the order of the Rights Commissioner that the respondent provide the appellant with 19 hours work each week and the Tribunal so orders.
The respondent produced a signed note dated the 23rd November 2015 to the Tribunal in support of the contention that the appellant had resigned and essentially frustrated the respondent’s efforts to implement the order of the Rights Commissioner. The Tribunal’s view is that the respondent may not rely on this document.
The Tribunal orders the employer pay the appellant compensation of €1,500 within six weeks of the date of this Determination. Thus, the Tribunal varies the Rights Commissioner Decision (reference: r-138901-tu-13/RG) under the European Communities (Protection of employees on Transfer of Undertakings) Regulations 2003.
Sealed with the Seal of the
Employment Appeals Tribunal