EMPLOYMENT APPEALS TRIBUNAL
Amanda Mc Garry
against the recommendation of the Rights Commissioner in the case of Dublin Airport Authority, PLC (DAA)
ASC Airport Services Consolidated Limited
PROTECTION OF EMPLOYEES ON THE TRANSFER OF UNDERTAKINGS REGULATIONS 2003.
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran B.L.
Members: Mr. M. Noone
Mr. S. O'Donnell
heard this appeal at Dublin on 23rd October 2015, 17th October 2016, and 18th October 2016.
Appellants: Ms. Marguerite Bolger S.C. and Mr. Conor Bowman S.C. Instructed by Mr. Joseph Burke, Mc Cartan & Burke, Solicitors, Iceland House, Arran Court, Smithfield, Dublin 7.
Respondents: Mr. Tom Mallon B.L. Instructed by Seamus Given, Arthur Cox Solicitors, Earlsfort Centre, Earlsfort Tce. Dublin 2
Background to 2nd Preliminary Issue:
These cases came before the Tribunal by way of appeals by the Employer against the decisions of the Rights Commissioner Ref: R-120562-TU-12/3JW, R-120402-TU-12/JW, R-120447-TU-12/JW, R-120539-TU-12/JW, R120553-TU-12/JW and R-120445-TU-12JW.
Two preliminary issues were identified by this Tribunal:
- Whether the matter was within the six week time-limit for appeal to this Tribunal from the Rights Commissioner. On this issue the Tribunal ruled that having regard to the wording of the relevant Regulations of the 2003 Regulations, S.I. NO. 131/2003, the matter was within time for the purposes of the said appeal. (First Preliminary hearing).
- Whether the complaints lodged with the Rights Commissioner for Transfer of Undertaking was within the year stipulated by Regulation 10(6) of the said Regulations of 2003and if it was within that time limit, whether the conditions for invoking that time limit, were satisfied. The matters contained in Number 2 are the subject matter of this Determination.
This is a case dealing with a purported Transfer of Undertaking. The law in this area is highly volatile and very imprecise. There are many cases with diverse and varying decisions. Consequently like all such cases a heavy reliance is placed on the facts of each particular case. This case is no exception. The Tribunal over three days dealt with various aspects of this case that arose. The following main areas were identified:
1. Time limit for appeal from the rights commissioner’s hearing to this Tribunal. In this matter (on a previous date) this Tribunal held that it was within time for the purpose of the hearing of the appeal and/or in any event it had the power to extend the time under the wording of the relevant regulations.
2. The time limit from the date of the purported transfer to the lodging of the complaint with the rights commissioner. (a) Whether it was outside a year. If it was, then that was the end of the matter. (b) If it was outside six months but within the year this was sufficient provided certain defined statutory conditions were fulfilled.
3. The substantive issue i.e. whether based on the facts and the applicable law, there was a transfer within the meaning of the Transfer of Undertakings Regulations 2003 in particular Regulation 3(1).
4. Other ancillary matters.
5. With regard to point 2 (b) it was agreed between both parties that the time limit was outside the initial time limit of six months.
6. This is the second preliminary issue to arise in this case. In this preliminary issue the Tribunal addresses two issues:
7. Having regard to the circumstances of this case and having regard to the Regulations: 1/ Does the claim relating to transfer of undertaking come within the one year time limit? If it does not then that is the end of the matter. 2/ If it does then, can the statutory conditions under which the one year time applies be fulfilled?
The Relevant statutory and regulatory provisions relevant to this area are contained in S.I. No.131/2003- European Communities (Protection of Employees on Transfer of Undertakings) 2003, in particular:
Regulation 2 (Definitions)-
“transfer” “ shall be construed in accordance with Regulation 3,”
Regulation 3 (1) “These Regulations shall apply to any transfer of an undertaking , business or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease ) or merger.”
Regulation 9 (1)
“A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of these Regulations or is inconsistent with any provision of these Regulations.”
Regulation 9 (2) “A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by these Regulations shall be deemed to be modified so as not to be less favourable.”
Regulation 10 (6)“ A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates , or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.”
In making its decision this tribunal had the benefit of hearing in detail the evidence from various witnesses from both sides, the legal argument and principles applicable to this case, as presented by the legal teams from both sides in a logical, cogent, persuasive, detailed, and eloquent manner, and finally, detailed written submissions.
In relation to the time limits in this area the real difficulty is not the time limit per se but rather the time frame under which the time limit should be measured. Because of the important benefits and rights flowing from such transfers and in order to have discipline and a degree of certainty and having regard to the wording of the relevant Regulation governing time limits it is the view of this Tribunal that the provisions under the Regulation are mandatory and not directory, (i.e. “a rights commissioner shall not entertain a complaint under this Regulation” etc.) and accordingly the said
Time limits should be strictly construed.
In making its decision the tribunal is mindful of the following case law i.e.
Celtec v Astley and Others- IRLR 647, (2OO5), which ruled that Article 3/ (1) of Directive 77/187must be interpreted as meaning that the date of a transfer within the meaning of that provision is the date on which responsibility as employer for carrying on the business of the unit transferred moves from the transferor to the transferee. That date is a particular point in time which cannot be postponed to another date at the will of the transferor or transferee. For the purposes of applying that provision, contracts of employment or employment relationships existing on the date of the transfer between the transferor and the workers assigned to the undertaking transferred are deemed to be handed over, on that date, from the transferor to the transferee, regardless of what has been agreed between the parties in that respect. In other words date and time of a purported transfer of undertaking is largely governed by the sequence of the occurrence of events rather than principles of law or by agreement or arrangement between the parties. In this particular case because of the vagueness or uncertainty as to what was purportedly transferred it was necessary to consider all aspects of this case (including elements of the substantive issue) i.e. the various time limits and the elements and circumstances surrounding the purported transfer itself.
Rotsart de Herting : (Case C-305/94) 1997 IRLR 127.- “The transfer of contracts of employment and employment relationship pursuant to Article 3(1) of the Directive necessarily takes place on the date of the transfer of the undertaking and cannot be postponed to another date at the will of the transferor or transferee.”
Byrne v Quigley Ltd UD 762/94: This case gives an analysis of the wording of section 7(a)(2) of the Unfair Dismissals Act as amended, which is directly parallel to Regulation 10(6) of the Regulations 2003, which is applicable in this case and which is referred in more detail below, (for emphasis) in particular the phrase “exceptional circumstances” and the word “prevented”.
The case of Gordon O’Duinn v Oxigen Environment (UD459/2012).
The Claimant had instructed his trade union and signed a Form T1A within the 6 month time limit and had relied on his trade union to lodge the claim within that time limit. Later on the Claimant checked with the Employment Appeals Tribunal and the Labour Relations Commission and discovered that no such claim had been lodged. Later on he claimed that he had relied on his trade union to lodge his claim and had believed that he had done so and claimed that for that reason exceptional circumstances had prevented him from lodging the TIA Form within the statutory time limit. The Tribunal determined that the failure of a trade union to lodge a claim did not constitute exception al circumstances justifying an extension of time.
Similar sentiments were enunciated in the case of Shortland v G4S Secure Solutions (Ireland) Limited UD42/2012.
For the purposes of guidance an agreed list of events were handed into the tribunal. The list is outlined as follows:
Terminal 2 - Relevant Dates
29th of October 2010: T2 landside/airside border established.
19th of Novemer 2010: T2 became operational for passengers/opening day
23rd of November 2010: T2 first schedule flight departure
22nd of February 2011: T2 Aer Lingus completed its migration to T2
24TH of February 2012: Claims filed with Rights Commissioner
As stated the complaint in question was filed with the Rights Commissioner on the 24th of February 2012.
CLAIMS LODGED OUTSIDE TWELVE MONTHS
It is the Respondent’s submission that that the time-limit for bringing these claims under Regulation 10(6) of the 2003 Regulations has expired in that such claims were lodged more than twelve months after the date of the alleged contraventions. The Appellants dispute this on the basis that the alleged complaints are within the stated time-limit, as denoted through a series of correspondence between them and SIPTU. Here it was submitted that an email dated the 16th of December 2011, was the first juncture at which any of the Applicants could or did become aware that their Union was not pursuing a claim under the Transfer of Undertakings legislation.
Separately correspondence between the Respondents and the Appellants i.e. “the letter of offer”, and the date of signature denoting acceptance of same i.e. the 7th of June 2011 the stated terms and conditions governing the new employment including the start date and as applicable to each party, the “exit date” and other events and circumstances. This they contended would put them within the one year time-limit and conditions as outlined in Regulation 10(6).
Having examined in detail the circumstances of this case and the chronological order of events in relation to Terminal 1 and Terminal 2, we are of the view that the “special point in time” for the purposes of the purported transfer was the time frame within the 29th of October 2010 and the 19th of November 2010, inclusive, and the time begins to run for the purpose of making a complaint to the Rights Commissioner from that point in time.
On the 29th of October 2010 the landside/airside border was established. This was the demarcation line between Terminal 1 and Terminal 2 carried out by members of the Garda Siochana and was one of the first steps in the purported transfer and the subsequent date of the 19th of November 2010 when Terminal 2 became operational for the purpose of providing the various services and opening day, which would include the arranging and booking of scheduled flights. These steps denote a transfer of authority, jurisdiction and control. Even if one was inclined to the view that the relevant date was the 21st of November 2010, this point would be moot in that it was still outside the year from the making of the complaint. This Tribunal is of the view that the complaints lodged are deemed to be outside one year and accordingly that is the end of the matter.
CLAIMS WITHIN TWELVE MONTHS,
SUBJECT TO CONDITIONS.
Further or in the alternative if we are mistaken in the above analysis and conclusions and the complaint is deemed to be within the time limit of one year because the relevant time limit for the purpose of bringing a claim should be measured from a much later date as contended by the Applicants but outside the initial 6 months then it can only be extended in accordance with the conditions as laid down in Regulation 10(6) of the 2003 Regulations as denoted above. (It is important to note at this juncture that both parties agreed that the complaint was outside the initial time limit of 6 months, in Regulation 10(6) of the 2003 Regulations)
The wording of this Regulation for the extension of time, as outlined is in direct parallel to the wording of Section 7 (a) (2) 1993 Unfair Dismissals Amendment Act 1993which applies to the bringing of a case for Unfair Dismissal. In that matter we note the Case of Byrne V Quigley Ltd. UD762/94. (as already referred to above and repeated here in more detail) which gives an analysis of the said wording as follows:
- “The words “exceptional circumstances” are strong words and should be contrasted with the milder words “reasonably practicable” in the Claimant’s written submission or “reasonable cause” which permit the extinction of time for lodging a redundancy claim under Section 12(2)(b) of the Redundancy Payments Act 1971. “Exceptional” means something out of the ordinary. At the least the circumstances must be unusual, probably quite unusual, but not necessarily highly unusual.
- 2(a) In order to extend the time the Tribunal must be satisfied that the exceptional circumstances “prevented” lodging the claim within the general time limit. It is not sufficient if the exceptional circumstances caused or triggered the lodging of the claim.
- 2(b) It seems to follow that the exceptional circumstances involved must arise within the first 6 months, “the period aforesaid”. If they arose later they could not be said to “prevent” the claim being initiated within that period.” In other words the Appellants must not only establish the existence of “exceptional circumstances” but they must also establish that they were “prevented” from bringing the claim within the initial 6 months.
The Appellants have submitted that subsequent to their alleged transfer to Terminal 2 each of them was lead to believe that SIPTU was progressing their claim against the Respondents under the 2003 Regulations on their behalf, and that they only became aware in December 2011 that SIPTU was not progressing this claim. At this stage the initial 6 month time limit had expired. The Appellants claimed that they were lead to believe that such a claim would be made and the subsequent failure to lodge this claim within the relevant 6 month time limit without informing them of its intention not to do so, constituted exceptional circumstances which justified the extension of the initial time limit of 6 months. It was also contended that the Appellants were awaiting the expiry of their 12 months probationary period before progressing this claim, and that they were accordingly not prevented from making this claim but that they chose not to do so. It was also noted that the evidence denoted that the Appellants did not engage in any meaningful way or engage directly with SIPTU, or follow up on tentative enquiries, especially given the proximity of SIPTU’s office.
The Tribunal is of the view, given the circumstances as presented in this case, that they are not sufficient as to fulfil the conditions necessary, and that the time limit of 6 months should not be extended as provided for under Regulation 10(6). The conditions concerned are quite onerous and difficult to establish to a satisfactory degree, for the purpose of invoking the one year time limit. These conditions are not just there to be exercised or invoked for the convenience of the parties, but must satisfy a strict and difficult test which is specifically outlined in the legislation.
As the complaints lodged with the Rights Commissioner is deemed to be out of time that is the end of the matter.
Sealed with the Seal of the
Employment Appeals Tribunal