ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00000840
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) |
CA-00001680-002 | 11/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) |
| 11/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) |
| 11/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) |
| 11/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under the Unfair Dismissals Acts 1977-2015 |
CA-00000989-001 | 11/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under the Payment of Wages Act 1991 |
CA-00000989-002 | 11/12/2015 |
Complaint seeking adjudication by the Workplace Relations under the Organisation of Working Time Act 1997 |
CA-00000989-003 | 11/12/2015 |
Date of Adjudication Hearing: 15/02/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Location of Hearing: Ashdown Park Hotel
The decision was deferred pending the outcome of the Labour Court Determinations TUD177 and TUD176 which were published in May 2017
Procedure:
In accordance with Section 41 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).
Summary of Complainant’s Case:
The claimant commenced employment as a cleaner with the transferor on the 1st.Aug.2013 on the minimum wage working a minimum of 21.5 hours per week.The business conducted by the respondent was transferred to Ashbrook Facility Management Ltd t/a AFM Ireland Ltd on the 1st.July 2015 . It was submitted that the respondent had been informed by the transferee that TUPE would not apply to the transfer – they did not meet the claimant nor the transferee and simply issued the claimant with her P45 , effectively terminating her employment. It was submitted that the respondent was in breach of Regulation 8 by failing to engage with the workers over the 30 day consultation period.The respondent failed to advise the claimant that the transferee would not be observing the provisions of TUPE and had failed to engage with the transferee and negotiate with them on behalf of their workers. In dismissing the claimant, the employer had failed to observe any fair procedures and LCR 21066 was invoked in support of this position. The respondent failed to pay minimum notice. The claimant had worked for the respondent for 2 years – working a total of 568.91 hours ; this entitled her to 45.51 hours annual leave.The claimant was led to believe it would be paid in her final pay but the commitment was not honoured.The provisions of WTC/09/279 were invoked in support of the claim that significant compensation be awarded for this breach. The respondent had been aware of the transferee’s position but ignored it and failed to engage with them on behalf of their workers. In terms of remedy the union sought 2 years pay for the dismissal, 4 weeks pay for breach of Regulation 8 , one weeks pay for notice and substantial compensation for failing to pay the accrued annual leave.Reference was made to applying the principles set out in Von Colson in calculating the appropriate remedies. It was submitted that the respondent failed to comply with the consultative provisions of the Regulations, that the respondent failed to ensure that her terms and conditions of employment were maintained following the transfer , that the claimant was dismissed by the respondent on the grounds of the transfer of the business , that the respondent failed to observe the existing employee representation arrangements following the transfer and that the respondent failed to inform employee representatives of certain details of the transfer. It was submitted that the respondent acted incorrectly in failing to apply the protective provisions of TUPE .It was contended that the claimant lost her service and in effect was dismissed , that she lost her accrued annual leave and that her working hours were reduced .This resulted in significant financial losses for the claimant and was the source of considerable distress for her. The claimant received a letter from the transferor on the 39th.May 2015 advising that they had lost the contract with a third level educational provider and that her employment and terms and conditions of employment would be safeguarded under TUPE.There was speculation in mid June that the respondent would not be applying TUPE and that they would be interviewing staff for positions as “ new day one employees”.The claimant was required to complete an application form by the respondent and was advised that if she did not accept the position she would be unemployed.”Left with no option she signed the documents”. The claimant raised her annual leave entitlement with the transferor and was advised that the transferee was responsible for the payment of same.She incurred a loss of 2.3 hours per week in working time and lost the value of her service.On the 29th.July the MD of the respondent company asserted that 90% of the workers had decided to take up the offer of employment with them and that TUPE did not apply. .Extensive submissions and ECJ authorites were invoked in support of the claim that the transfer constituted a transfer of undertaking under the Regulations. The union requested that the respondent be required to comply with TUPE by recognising the claimant’s full service , commencing from Aug.1st 2013, that her weekly hours be restored to 21.5, that she be granted 94.51 hours annual leave , that the respondent be required to provide for union recognition , that she be awarded 4 weeks pay for the consultative failures on the part of the respondent and that she be awarded 2 year’s compensation for the losses incurred.
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Summary of Respondent’s Case:
The respondent set out a chronology of the claimant’s employment history and asserted that they were confident that TUPE applied on the basis that there had been a taking over by the new employer , a major part of the previous employer’s workforce who were assigned to the contract in question. Additionally the request for tender published by the college had stipulated that acceptance of TUPE Regulations was a requirement of the successful tenderer. It was submitted that once the transfer occurred , the onus is on the transferee to ensure that the new employees terms and conditions of employment are preserved.It was submitted that the respondent satisfied its legal obligations to facilitate the transfer by consulting with the transferee and giving them details about the employees.It was submitted that as the claimant transferred employment , dismissal did not arise.It was submitted that the respondent had met their obligations in full with respect to information by advising employees of the transfer within the time limit specified by the Regs.The respondent was unaware the claimant had a representative and would have engaged with the representative had they been made aware.At no stage did the claimant approach the respondent about any grievances she had with the transfer. It was submitted that redundancy did not arise as the claimant’s employment had transferred and continued to exist. It was submitted that the claimant had no basis for a claim with respect to annual leave against the respondent as all liabilities rested with the transferee. It was advanced that an unfair dismissal could not have occurred as the claimant transferred and worked for the transferee. It was reiterated that TUPE did apply , that the claimant was given notice of the transfer by the respondent and that consequently no pay in lieu of notice was necessary. It was submitted that the WRC had already investigated identical complaints and had found that TUPE did apply and liability fell to the transferee.The decision was the subject of appeal to the Labour Court.It was submitted that the transferee had not only failed to observe their legal obligations under TUPE but also failed to comprehend the procedures of the WRC and had not attended the hearing previously referred to with respect to the claimant colleague. |
Decision:
Section 41 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.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 Ref – CA-00001680-002
Having reviewed the evidence presented at the hearing and noting in particular the Labour Court’s determination in TUD 176 , I accept the union’s contention that a transfer of undertaking occurred – which was not disputed by the respondent.I further accept that the respondent’s compliance with its obligations under Regulation 8 were minimalist given the absence of any meaningful engagement with the claimant and her representatives. I require that the respondent pay the claimant 4 weeks wages for this breach within 42 days of the date of this decision. I am satisfied that this is consistent with the approach of the Labour Court in TUD 176.
Complaint under the Unfair Dismissals Acts 1977-2015 Ref :CA-00000989-001
Having reviewed the oral and documentary evidence presented at the hearings, I find the claimant was not unfairly dismissed in light of the fact that her employment transferred to respondent B in accordance with the provisions of TUPE regulations.
Complaint under The Payment of Wages Act 1991 Ref :CA-00000989-002
It was submitted that the non payment of notice constituted a breach of the Act- as the claimant’s employment was transferred , there was no obligation on this respondent to pay notice and consequently the complaint fails.
Complaint under the Organisation of Working Time Act 1991 Ref:CA-00000989-003
The Claimant submitted that she did not receive her paid annual leave entitlement.
As the provisions of TUPE require that terms and conditions of employment transfer to the transferee , the obligations with respect to annual leave rest with the transferee. Accordingly I do not uphold the complaint.
Workplace Relations Commission Adjudication Officer: Emer O'Shea
DATED 01/12/2017