ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00001005
Complaint(s):
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Act |
Complaint/Dispute Reference No. |
Date of Receipt |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00001416-001 |
11/12/2015 |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001416-002 |
11/12/2015 |
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Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00001416-003 |
11/12/2015 |
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Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00001416-004 |
11/12/2015 |
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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-00001419-002 |
11/12/2015 |
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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-00001419-004 |
11/12/2015 |
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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-00001419-007 |
11/12/2015 |
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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-00001419-009 |
11/12/2015 |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00001546-001 |
17/12/2015 |
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Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00001546-002 |
17/12/2015 |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001546-003 |
17/12/2015 |
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Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00001546-004 |
17/12/2015 |
Date of Adjudication Hearing: 15/02/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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).
This decision was deferred pending the outcome of Labour Court Determinations TUD 176 and TUD 177 which were published in May 2017.
Summary of Complainant’s Case:
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The claimant commenced employment as a cleaner at the a third level college on the 13th.September 2008 – transferring a number of times including to the respondent – transferor .She held the position of Supervisor working 39 hours per week Mon-Fri 32 weeks per year.A transfer of undertaking between the respondent and the transferee (respondent B) took place 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 claimant was not paid her due redundancy payment , her week in hand , her outstanding annual leave or notice and that she was dismissed without fair procedures. The claimant received a letter from the respondent on the 29th.May 2015 confirming that they had lost the cleaning contract with the college and that her employment and terms and conditions of employment would be protected under TUPE.At this point the transferee had indicated to the transferor that they would not be applying TUPE Regulations. The claimant was advised by the respondent that her annual leave would transfer to the new company. 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. It was submitted that the respondent ceased carrying on the business for which the claimant had been employed and that consequently she was entitled to redundancy of €5,963.22 In dismissing the claimant on the 30th.June 2015 , the employer had failed to observe any fair procedures and LCR 21066 was invoked in support of this position.It was submitted that there were no grounds to justify dismissal The respondent failed to pay minimum notice. “The claimant had a holiday balance of 40.63 for 2014 and 31.60 for 2015 – she had been laid off since the 1st.May and the respondent chose not to pay her entitlement”s.She was advised that her holiday entitlements would transfer to the transferee.It was submitted that this was a clear breach of Section 19 of the Organisation of Working Time Act. The provisions of WTC/09/279 were invoked in support of the claim that significant compensation be awarded for this breach. 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 ground s 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. The union was seeking 4 weeks compensation for breach of Regulation 4, redundancy payment , compensation for unfair dismissal , 4 weeks pay for her month in hand , one months pay for failure to issue notice and significant compensation for failing to pay accrued annual leave. 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.
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Summary of Respondent’s Case: Summary of Respondent’s Case:
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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 her job was transferred to the transferee on the 1st.July 2015 and that her job still exists.A redundancy only arises when the job does not exist anymore – the claimant’s job transferred to the transferee and still existed after the date of the transfer. 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’s job transferred to the transferee. It was reiterated that TUPE did apply , that the claimant was given notice of the transfer- within the statutory time limit - by the respondent and that consequently no pay in lieu of notice was necessary.it was submitted that the claimant was paid all monies owed to her as per receipt of the time sheets submitted to Payroll. |
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 Section 39 of the Redundancy Payments Act , 1967 Ref CA-00001416-001
I accept the respondent’s contention that as the claimant’s job transferred to the transferee and continued to exist post transfer , redundancy does not arise and accordingly I do not uphold the complaint.
Complaint under the Unfair Dismissals Acts 1977-2015 Ref :CA-00001416-002
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-00001416-003
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-00001416-004
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.
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-00001419-002
Breach of Regulation 5
As a transfer of undertaking arose , the obligations with respect to the continued employment of the claimant rested with the transferee on the date of the transfer , consequently I do not uphold this element of the complaint
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-00001419-002/CA-00001419-004/CA-00001419-007/CA-00001419-009
Breaches of Regulation 8
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.
All 3 complaints were duplicate complaints and the substantive complaint has been dealt with above.
Dated: 01/12/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea