ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00001049
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 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 |
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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-00001408-003 |
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-00001408-005 |
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-00001408-006 |
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-00001408-007 |
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-00001408-009 |
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 Labour Court Determinations TUD 176/177
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:
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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 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 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 respondent 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 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 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. 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 was left in a take it or leave it situation by the respondent who made it clear that if she did not accept the offer , they would “ in turn hire somebody in your place”.It was submitted that the claimant was not asked was she a member of a union or if she wanted to avail of representation.Having unilaterally decided that TUPE did not apply , the respondent presented her with an ultimatum of take it or leave it.
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Summary of Respondent’s Case:
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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 basis : 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- the transferor. 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 verbally and soon after in writing that she would be accepting their offer of employment.It was submitted that the claimant was advised of her right to representation and was informed that all matters that predated her employment with the respondent would have to be pursued with Company A.It was submitted that the claimant’s hours were reduced in line with the contracted hours paid by the college.It was submitted that the claimant’s hours were increased in 2016 and that she was offered further hours in August 2016 , but declined them. The respondent invoked a number of authorities in support of their contention that a transfer of undertaking did not take place. |
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.
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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-00001408-001 |
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-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 set out in TUD 177, and having regard to the claimant’s length of service , I require the respondent to pay the claimant a sum of €4,500 compensation for these breaches within a time frame of 42 days from the date of this decision.
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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-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.
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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-00001408-006 |
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-00001408-007 |
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-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