ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00001118
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-00001419-001 | 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) |
CA-00001419-003 | 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) |
CA-00001419-005 | 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) |
CA-00001419-006 | 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) |
CA-00001419-008 | 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) |
CA-00001419-010 | 11/12/2015 |
Date of Adjudication Hearing: 15/02/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Location of Hearing: Ashdown Park Hotel
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 on a college site on the 13th.Sept.2008 she transferred employment on a number of occasions - ultimately her last period of work was with the transferor (Employer A) with whom she commenced on the 1st.July 2013 .The claimant was employed as Supervisor , working 39 hours per week , Monday to Friday , 32 weeks per year.The business conducted by the transferor was transferred to the respondent on the 1st.July 2015 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 claimant was offered a contract whereby she lost her service , her guaranteed 39 hour week , her Monday – Friday working days , her accrued annual leave and her hourly rate was reduced from €10.50 to €10.00 per hour.It was submitted that when the claimant failed to accept these terms and conditions , the offer of employment was withdrawn. The claimant received a letter from the transferor on the 29th.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 – She was to commence as a Day 1 employee on probation , on an if and when contract with no defined hours , a change to a 7 day working week and involving a reduction in pay. The claimant raised her annual leave entitlement with the transferor and was advised that the respondent was responsible for the payment of same- she was advised that she would receive her final pay including outstanding pay during the transfer.On the 29th.July the MD of the respondent company asserted that he had made several attempts to meet the transferor to no avail and that 90% of the workers had decided to take up the offer of employment with them and that TUPE did not apply. It was submitted that they claimant had attempted to engage with the respondent , that the offer from the respondent was withdrawn and her employment terminated. Extensive submissions and ECJ authorities 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 restoredto 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. In a later submission the union took issue with the respondent’s interpretation of Suzen and asserted that the principles outlined in TU23/11 were pertinent to the instant case.It was also emphasised that the claimant commenced a new job with another cleaning firm on the 13th.August 2015 –“ after lengthy deliberations about the ultimatum that she was faced with to accept her terms and conditions being diminished after years of dedicated loyal and hard working service or leave and find alternative comparable terms and conditions with a new employer”.The claimant received a text from the respondent on the 20th.July making it clear that if the offer as presented was not accepted by the 22nd.July they would hire someone in her place.It was submitted that the claimant had a right to retain her job , service and all of her conditions of employment .It was submitted that termination of the claimant’s employment arose solely by reason of the transfer of undertaking.The contract of employment terminated because the transfer involved substantial changes in working conditions to the detriment of the claimant and it was advanced that the respondent was responsible for the termination of her contract of employment. The claimant was offered inferior terms , was owed accrued annual leave was not consulted with within the consultative 30 day period and was given an ultimatum – apply for her own job at seriously deficient terms and conditions – she declined the offer. |
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Summary of Respondent’s Case:
The respondent submitted that they entered the tendering process for the provision of cleaning services for the third level provider on the basis that TUPE did not apply and “ the intent that it could manage the site with its own employees”.It was contended that TUPE did not arise in the case of A second generation transfer Where no transfer of tangible or intangible assets have taken place as part of the transfer of the business The original undertaking does not cease to exist. The respondent asserted that they made the decision to offer employment to the employees of Company A at the request of the college on the following bass : TUPE would not apply All employees who agreed to resign their position with Company A would be made an offer of employment by the respondent Any offer of employment would be on the respondents terms and conditions of employment as a new employee commencing on the 1st.July 2015 and Any issues regarding terms and conditions of employment/ annual leave etc. prior to the 1st.July 2015 would be a matter for Company A. It was asserted that the respondent was never made aware that the claimants were represented by SIPTU until they received correspondence from the WRC. It was contended that all attempts to interact with Company A had failed. It was submitted that the respondent wrote to Company A on the 10th.May 2015 , advising them that they had been awarded the contract and that TUPE did not apply.The respondent advised the college that they would be servicing the contract with their own workforce – the college requested the respondent to consider offering the existing employees direct employment and this was acceded to.The respondent set out a chronology of their attempts to engage with Company A to no avail.A series of meetings took place with employees from Company A and at the final meeting on the 23rd.June 2015 , the claimant confirmed that she would be accepting the respondent’s offer of employment.It was submitted that it was made clear to the transferor’s employees that they had 2 options – resign their position with the transferor and accept the respondent’s offer or remain an employee of the transferor and discuss their contract with them. It was submitted that the claimant texted the respondent on the 25th.June confirming that she would accept their offer but no contract was received .It was advanced that the respondent made several attempts to communicate with the claimant during July 2015 but that she failed to respond.On the 20th.July 2015, the respondent emailed the claimant to the effect that if she did not reply to the offer of employment by the 22nd.July 2015 , the offer would be withdrawn as the respondent needed to fill the position.The claimant did not respond and it was asserted that they realised that the claimant had arranged alternative employment during this period. The respondent invoked a number of authorities in support of their contention that a transfer of undertaking did not take place. It was submitted that a transfer of undertaking did not arise and the respondent consequently had no obligations under TUPE ; the claimant verbally accepted the respondent’s offer on the 23rd.June 2015 but never commenced employment with the company.It was argued that accordingly the respondent could not dismiss the claimant as she was still an employee of the transferor.A chronology of the meetings between the respondent and the transferor’s staff was set out and it was submitted that their offer of employment was a goodwill gesture.It was submitted that the claimant was advised on a number of occasions that she could seek legal representation and that the first communication received from the claimant’s union was on the 28th.July 2015 – 28 days after the contract commenced. |
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.
The main issue in dispute between the parties is whether the transfer constituted a transfer of undertaking under TUPE Regulations 2003.
Having reviewed the evidence presented at the hearing and noting in particular the Labour Court’s determination in TUD 177 , I have concluded on foot of the respondent’s confirmation that it took over the majority of the workforce deployed by the transferor to service the cleaning operation at the college that a transfer of undertaking took place.
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-00001408-001 | 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) |
CA-00001408-003 | 11/12/2015 |
The claimant submitted that her terms and conditions of employment and continuity of service were not preserved by the respondent.On the basis of the evidence presented and the respondent’s confirmation that they operated on the basis that this was not a TUPE transfer , I have concluded that the respondent did not ensure that the claimant was retained on no less favourable terms and conditions of employment than those she held while in the employment of the transferor.The respondent did not ensure that the claimant’s continuity of employment was preserved and failed to accept liability for the claimant’s accrued annual leave.In accordance with the principles of TUD 177 and in light of the claimant’s length of service, her working hours and her position as Supervisor I require the respondent to pay the claimant a sum of €7,000 compensation for these breaches within a time frame of 42 days from the date of this decision.
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-00001408-005 | 11/12/2015 |
The claimant submitted that she was dismissed by the respondent on the grounds of the transfer of the business. As the claimant’s employment transferred from the transferor to the transferee under TUPE , no dismissal arises and consequently I do not uphold this complaint.
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-00001408-006 | 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) |
CA-00001408-007 | 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) |
CA-00001408-009 | 11/12/2015 |
It was submitted that the respondent failed to preserve/arrange employee representation , that the respondent did not inform employee representatives of certain details of the transfer and that the respondent did not consult in relation to the transfer.The respondent submitted that they had advised employees that they could seek legal representation , that their contract offer of employment was a goodwill gesture and that TUPE did not apply.
I note in Labour Court Determination TUD 177 that the Court found that no information or consultation process took place with the employees representatives and that by their own admission the respondent had told the employees collectively and individually that no transfer would take place.It was determined that consequently the respondent was in breach of Regulation 8(1)(c) and (d).The Court awarded 4 weeks pay.
This complaint is identical to that considered in TUD 177 and accordingly I am upholding the complaint.I require the respondent to pay the claimant compensation of 4 weeks pay within 42 days of this decision.
DATED : 01/12/2017
Workplace Relations Commission Adjudication Officer: Emer O Shea