ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001760
Complaints for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 30/11/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Complainant’s Submission and Presentation:
The complainant was very dissatisfied with a number of aspects of her role, including the shift pattern, her job title and other issues dating back to her recruitment while still in her home country; Romania.
She says that the position was not as she understood it would be (and she made other complaints that lay outside the jurisdiction of the adjudication).
She particularly complained about her pattern of shifts which was so demanding that it eventually caused her to become ill.
She accepted that the work she was asked to do following the transfer was the same as she had performed for the transferor.
The complainant offered no evidence on this complaint.
Respondent’s Submission and Presentation:
The complainant was employed as a ‘concierge’ in an apartment block. The respondent says that there was no dismissal.
The complainant declined mediation on the various matters outstanding between the parties in November 2015.
The respondent undertook a review of its concierge services in November 2015 and decided to transfer them to a sister company. The complainant was to transfer to the new entity retaining all her employment status and rights in line with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.
The transfer took effect on February 1st 2016.
The complainant refused to transfer despite being assured that she would transfer on the same basis as she had been employed by the respondent.
Accordingly the respondent submits that the complainant resigned and that no dismissal took place.
The respondent produced a copy of the complainant’s contract of employment, signed by her on September 23rd, 2011 and said it had been regularly updated.
Findings and Conclusions.
There were clearly many background issues which were a source of grievance for the complainant, but which were not directly related to the specific complaints.
It is regrettable that the proposed mediation did not proceed, apparently as a result of either a misunderstanding on the part of the complainant as to its possibilities, or not having these clearly explained to her. The respondent expressed the view at the hearing that the entire matter was avoidable had there had been greater engagement by the complainant.
These unresolved issues may have played a role in the complainant’s decision not to accept the transfer to the new entity. However, and critically, in her evidence she accepted that her work would remain the same after the transfer. It seems she wished to use the opportunity of the transfer as leverage in respect of some of her general grievances. If so this was a high risk gamble that did not succeed.
There is no basis for concluding that the employment was terminated, other than as a result of the actions of the complainant and no basis for upholding her complaint under the Unfair Dismissal Act.
Likewise the respondent demonstrated that it had fully complied with its obligations under the Terms of Employment (Information) Act 1994 and her case fails there also.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons set out above I uphold neither Complaint CA-00002369-001 nor Complaint CA-00002604-001 and they are both dismissed.
Dated: 25th January 2017