ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004876
Date of Adjudication Hearing: 06/01/2017
Workplace Relations Commission Adjudication Officer: Caroline McEnery
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The claim to be decided
This case is between three employees and contract cleaning company.
The legislation is a claim in relation to section 7, of The Terms of Employment (information) Act, 1994 and in relation to Section 39 of the Redundancy Payment Acts, 1967.
Complainant’s Submission and Presentation:
The Complainants began working with the Respondent Company in 2012.
The Complainants state that in September 2015 that they were informed that they were being transferred to a new employer.
The cleaning contract was taken over by a new company on the 1st October 2015. The complaints stated that they did not transfer under the transfer of undertaking’s regulations.
2 Complainants stated that they started immediately with the new company who took over the contract cleaning they did previously through the respondent company but they allege they did so under new terms and conditions of employment and not as part of the transfer. They continued to do the same work.
One of the Complainants was on sick leave in September 2015 when the changes were occurring. When the Complainant got in touch with the new company in March 2016 stating that she was now fit to return to work she did not receive a response from the new company.
At this point she contacted the Respondent Company claiming redundancy.
The Complainants state that they were dismissed by way of redundancy by the Respondent and that they are consequently entitled to a Redundancy Payment.
The Complainants state that they did not transfer under the transfer of undertaking’s regulations as although they took up employment immediately with the new employer they did so under new terms and conditions of employment.
The Complainant representative states that Under the Terms of Employment Act 1994 that they were not provided with a written statement of terms of employment in compliance with s 3 of the Act.
They stated that even though they received and signed contracts of employment they were not in Polish which was their native language and also that the contracts had errors in relation to the correct company name and address as well as their start date.
Respondent’s Submission and Presentation:
The Respondent Company states that employees transferred to the new company on the 1st of October 2015 via TUPE Regulations.
The Respondent Company states that if the new company ignored their legal obligations under the TUPE Regulations by offering different terms and conditions and new start dates to the employees it is not a redundancy claim for them to answer.
The Respondent responds to the Complainants claim regarding redundancy by stating that the claim is without merit as it does not satisfy the criteria required for a redundancy payment as it was a TUPE situation.
The Respondent Company have stated that they have fulfilled their obligation by informing all employees of the transfer and no redundancy existed.
The Respondent states any errors on the contract were administrative errors.
The Respondent states they gave the employee’s contracts of employment when they commenced their employment in 2012. They stated that this claim in relation to their terms of employment is out of time in line with the legislation and they all signed their contracts in 2012.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
The first issue for decision is to establish if the Complainants should have received a redundancy payment in September 2015 as outlined by Section 7 of the Redundancy Payment Act 1967.
The second issue for decision is to establish if the Complaints should receive compensation relevant to Section 3 of the Terms of Employment (Information) Act 1994 considering discrepancies outlined in the complainants contracts of employment.
The Complainants have also argued that they never received their terms of employment in Polish although all three employees were Polish.
Legislation involved and requirements of legislation:
This case is referred under Section 13 of the Industrial Relations Act which states that "Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him"
In addition the case is referred under:
Section 7 of the Redundancy Payment Act 1967 which outlines:
An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment.
Section 3 of the Terms of Employment (Information) Act 1994 which outlines:
An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment
Section 7 of the Redundancy Payment Act 1967
The Respondent Company has stated that the services contract was transferred via TUPE from the Respondent Company to the new company on the 1st of October 2015.
All 3 Complainants confirmed that they received letters from the Respondent confirming the transfer was occurring.
Two of the Complainants informed the Adjudicator that they are now working for the new company and that they have been doing so since the TUPE date.
The Complainant who was on sick leave at the time of the TUPE has not received a response from the new company following a letter she sent with regard to her returning to work following her period of sick leave.
Following this she got in touch with the Respondent Company seeking the Redundancy.
The Adjudicator finds based on the oral evidence and the submissions presented that a transfer occurred. A case in relation to whether the new employer abided by the transfer of undertaking regulations is not before the adjudicator however it does not mean that a redundancy situation applies. The Adjudicator finds that this claim fails on behalf of these 3 Complainants as a redundancy did not exist as defined by the legislation in this case.
Section 3 of the Terms of Employment (Information) Act 1994
The Complainants commenced their employment in 2012 and they received their contracts in 2012. The Complainants confirmed they got advice in relation to their contracts and understood them. The employee’s employment was terminated on the 1st October 2015 with the Respondent.
The claim was received by the work place relations commission on the 16th August 2016.
The employee’s claim has expired and is out of time. Also no justifiable reason was presented to extend this time therefore this claim fails.