INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003
OCS ONE COMPLETE SOLUTION LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Appeal of Adjudication Officer's Decision No R-151619-TU-14.
2. This is an appeal of an Adjudication Officer's Decision No: R-151619-TU-14 made pursuant to Section 11 (1) of the European Communities (Protection of Employees on Transfer of Undertakings) regulation, 2003. The appeal was heard by the Labour Court on 4 May 2016 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
Mr Radek Velicka brought a complaint before an Adjudication Officer pursuant to Regulation 10(1) of theEuropean Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. No. 131/2003 (the Regulations)alleging a breach by his employer OCS One Complete Solution Limited of Regulations 4 and 8 of the Regulations when his employment was transferred from Viking Security Limited to OCS One Complete Solution Limited.The Adjudication Officer’s Decision R-151619-TU-14 held that his complaint was well-founded and awarded him the sum of €1,620 in compensation in respect of the breach of Regulation 8 and the sum of €11,000 in compensation for the breach of Regulation 4 of the Regulations.
Both Mr Velicka andOCS One Complete Solution Limited appealed this Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Velicka is referred to as "the Complainant" and OCS One Complete Solution Limited is referred to as "the Respondent".
The Complainant told the Court that he referred his complaints under the regulations to the Workplace Relations Commission on 12thDecember 2014.
In his submission to the Court, it appeared that the Complainant was seeking an extension of time under Regulation 10(6) of the Regulations. However, when the Court raised this point at the hearing, the Complainant was clear that he was not seeking an extension of time.
The Complainant has been employed as a Security Officer with Viking Security Limited from 7thMarch 2011until he was transferred to the Respondent in accordance with the Regulations on 27thOctober 2014. The Complainant’s employment with the Respondent terminated on 22ndSeptember 2015.
Summary of the Complainant’s Case
The Complainant submitted that the Respondent was in breach of Regulation 4 of the Regulations on the basis that the Respondent failed to comply with its statutory obligation to transfer his terms and conditions of employment when a transfer of undertaking took place on 27thOctober 2014. He claimed that the Respondent did not accept his previous terms and conditions of employment. He claimed that the Respondent did not observe the correct rates of pay, allowances or premia as provided for in the Security Industry JLC. In addition, he claimed that he had an entitlement to outstanding annual leave and public holiday entitlements.
Furthermore, he claimed that the Respondent had failed to furnish him with 30 days’ notice of the transfer as provided for in Regulation 8 of the Regulations.
The Complainant gave evidence under oath to the Court.
Summary of the Respondent’s Position
The Respondent denied the Complainant’s allegations. The Respondent stated that it found itself in an unique situation regarding the transfer as the contract under which the Complainant was employed was not due to fully transfer over to it until mid-November 2014. However, the transferor’s insurance ran out, and in order to avoid a situation where the employees might have to be laid off, the Respondent decided to employ them at an earlier date than originally envisaged.
The Respondent stated that as part of the transfer due diligence process, it sought and received a breakdown of the details of all employees’ rates of pay and terms of employment, including the Complainant’s. This showed that the Complainant was paid at a rate of €10.01 per hour. The Respondent stated that it had abided by the terms and conditions in existence at the time of the transfer. The Respondent told the Court that it had no reason to disbelieve the information provided to it under the due diligence process and once the Complainant brought it to its attention that he was in actual fact paid a rate of €10.75 per hour since September 2012, it rectified the situation accordingly and paid him that rate with effect from the date it took over the business from Viking Security Limited. The Respondent told the Court that no evidence was provided by the Complainant to prove that he was in receipt of allowances and premia.
Conclusions of the Court
The written submissions were open to the Court in full. Having read the Claimant’s submission in preparation for the hearing, it became clear to the Court that the Complainant was referring to numerous issues which the Court has no jurisdiction to hear under the Regulations and/or issues which were not encompassed by the cognisable time period under Regulation 10 of the Regulations. In order to focus the case (which was being heard at the same time as his appeal under the Payment of Wages Act 1991) and to establish the range of issues that fell to be determined under the Regulations, the Court invited the Complainant to make verbal submissions on specific points of relevance to a claim under the Regulations. As the Claimant was unrepresented the Court made every effort to explain the various steps it was taking.
It is noted that a number of the issues addressed by the Complainant related to alleged breaches of the Organisation of Working Time Act 1997. The Adjudication Officer issued Decision R-151614-WT-14. This Decision was not appealed.
The Court established the date of claim and the cognisable period covered by the claim and invited him to address it on the issues that fell to be determined within that period. The Complainant had also taken cases against the transferor for the same cognisable period and had been compensated in respect of breaches found and this was also a factor which the Court invited both parties to address.
The claim under the Regulations was submitted to the Workplace Relations Commission on 12thDecember 2014, therefore, only contraventions of the Regulations which may have occurred in the six months preceding the referral i.e. the period from 13th June 2014 to 12th December 2014 are cognisable for the purpose of obtaining redress.
Regulation 4 Claim
In his evidence to the Court the Complainant brought to the Court’s attention that he had also submitted a similar claim under the Regulations against Viking Security Limited. That claim was referred on 12thDecember 2014, the same date as the referral in this case. That case was heard by an Adjudication Officer and a Decision was issued on 1stMarch 2016. The Adjudication Officer found in his favour and as a consequence he was paid €1,620.00 compensation for the breach of Regulations 8 as found by the Adjudication Officer. In a separate claim under the Payment of Wages Act 1991 he was compensated by a payment of €2,050.44 in respect of his entitlement to Sunday Premia, overtime premia, public holiday entitlements and night allowances. In a further claim made under the Organisation of Working Time Act 1998 he was compensated for a breach of the Act in respect of annual leave and was paid €750.00. All of the claims made against Viking Security Limited were submitted on 12thDecember 2014 and encompassed the same time period covered by his claim against the Respondent i.e. the period from 13th May 2014 until 12th December 2014.
The Complainant confirmed to the Court that he had received all of the above payments from a former Director of the transferor - Viking Security Limited (now Liquidated) - in discharge of his claim.
Regulation 4 of the Regulations provides that the rights of employees which are subject to transfer and the obligations of the transferee consequent on the transfer are dependent on the rights and obligations that were in existence at the date of transfer. Having considered the submission made the Court is satisfied that the Complainant’s rights including his terms and conditions of employment in existence as of the date of the transfer were transferred to the Respondent without alteration and accordingly finds that the Respondent met its obligations under Regulation 4 of the Regulations.
The Respondent was supplied with misinformation by the transferor. When it was brought to its attention by the Complainant that he was being paid €10.75 per hour and not €10.01 as stated in the due diligence process by Viking Security Limited, the Respondent sought confirmation from the Complainant and was presented with his payslips. These payslips confirmed that he was paid €10.75 per hour, however, no details of premia or allowances were shown, therefore, the Court is of the view that it was reasonable for the Respondent to contend that such premia and allowances did not form part of his existing terms and conditions of employment on the date of transfer. There is now no doubt that the Complainant was in dispute with Viking Security Limited over the non-payment of these terms and conditions and submitted claims to that effect to the Workplace Relations Commission on 12thDecember 2014.
In these circumstances, the Court is satisfied that the Respondent undertook the necessary due diligence steps to determine the Complainant’s existing terms at the date of transfer. It ensured that it acted on the information supplied at the date of transfer and that these terms were transferred over following the transfer. Therefore, the Court finds that there was no breach of the Regulations.
Accordingly, the Court does not find in favour of the Complainant’s claim under Regulations 4 of the Regulations.
Regulation 8 Claim
The Court notes that the Complainant referred a claim under the Regulations to the Workplace Relations Commission against the transferor (Viking Security Limited) alleging that it had failed to furnish him with 30 days’ notice of the transfer as provided for in Regulation 8 of the Regulations. The Adjudication Officer found in his favour and awarded him the sum of €1,620.00 in compensation.
A difficulty arises here where it is apparent that the Complainant has overlapping claims based on the same set of facts. It seems to the Court that as a matter of principle the Complainant cannot rely on the same matters to obtain redress from both the transferor and the transferee under the Regulations. The Complainant confirmed to the Court that he had received payment of €1,620.00 on behalf of the transferor - Viking Security Limited (now Liquidated) - in discharge of his claim. The Complainant confirmed for the Court that he accepted that payment.
The Complainant had been an employee of the transferor and as such in accordance with Regulation 8 of the Regulations the onus was on it to inform its respective employees of the transfer within the required time period.
Regulation 8 (1) of the Regulations states:-
“8(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 Regulations place an obligation on the transferor to inform its employees concerned, and on the transferee to inform its own employees. There was no obligation on the transferee (in this case the Respondent) to inform Viking Security Limited’s employees of the transfer. However, the Court notes that the transfer of employer occurred within the requisite notice period. In any event, as the Complainant cannot recover twice in respect of the same matters, the Court finds that the Complainant’s claim under Regulations 8 of the Regulations is not well-founded.
For the reasons set out above the Court does not find in favour of the Complainant’s appeal.
The Court finds in favour of the Respondent’s appeal and therefore the Adjudication Officer’s Decision is overturned and set aside.
The Court so Determines.
Signed on behalf of the Labour Court
16 May 2016______________________
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.