SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
SYNERGY SECURITY SOLUTIONS LIMITED
(REPRESENTED BY TERENCE J. O'SULLIVAN SOLICITORS)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms O'Donnell
1. Appeal Of Adjudication Officer Decision No: r-159276-ud-15
2. The Employer appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on the 14th September, 2016. A Labour Court hearing took place on the 24th January, 2017. The following is the Determination of the Court:
This is an appeal by Synergy Security Solutions Limited against the decision of an Adjudication Officer r-159276-ud-15/EOS under the Unfair Dismissals Act 1977 – 2015. In this Determination the parties are referred to as they were at first instance, hence Mr Reilly is referred to as ‘the Complainant’ and Synergy Security Solutions Ltd is referred to as ‘the Respondent’.
The Adjudication Officer found that the Complainant became an employee of the Respondent upon a transfer of undertaking, when Synergy Security Solutions Limited took over the Bus Éireann Security Services contract from Noonan Services Group Limited on 28thFebruary 2015 and found that the Respondent had unfairly dismissed the Complainant. He ordered the Respondent to pay the Complainant compensation in the amount of €8,000.
The Respondent appealed the Adjudication Officer Decision to this Court on 15thSeptember 2016. The appeal came before the Court on 24thJanuary 2017.
Dismissal is disputed in this case. The Complainant’s employment commenced with a different security company, Federal Security, on 1stAugust 2008. The Complainant was employed as a security officer and was assigned by his employer to work at the Bus Éireann depot in Dundalk where his employer operated a security services contract for Bus Éireann. The Complainant worked at that location with two other colleagues and he was assigned exclusively to that location throughout his employment.
Pursuant to the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131) (hereinafter ‘the Regulations’), the Complainant’s employment transferred from Federal Security to Noonan Services Group Ltd (hereinafter ‘Noonans’) in 2012.
On 26thFebruary 2015, following a period of sick leave for approximately two months, the Complainant returned to work and learned that the Bus Éireann security services contract was, pursuant to the Regulations, due to transfer from Noonans to the Respondent two days later, with effect from 28thFebruary 2015. During the period of his absence, the Complainant’s hours had been covered by his two colleagues. The Complainant had no knowledge at all of the impending transfer until his return from sick leave. Having been advised by Noonans to make contact, the Complainant contacted the Respondent prior to the transfer date and was advised that they had never been made aware by Noonans that he was employed on the security services contact. They had received no details on him whatsoever throughout the due diligence and information transfer processes that took place in the context of the transfer of the business. The Complainant was given to understand from the Respondent that as far as the Respondent was concerned the Complainant remained an employee of Noonans and was not part of the transfer of the business to the Respondent.
On 3rdMarch 2015, the Complainant emailed his SIPTU representative to seek assistance and apprised him of the circumstances in which he found himself. He informed his representative that he has been given to understand that Noonans had included his details as part of the transfer but that the Respondent had received no details and was unaware of him.
On 5thMarch 2015, SIPTU sent an email to Noonans making representations on behalf of the Complainant. The concluding lines of that email stated:-
“The TUPE [sic] took place on the 28thFebruary and Gerard was not included on the TUPE [sic] list. Gerard is s [sic] full time employee with Noonan and needs to be given a full time roster without delay”.
On the same day, a HR representative of Noonans had both telephone and email contact with her counterpart at the Respondent and it was explained to the Respondent’s representative that the Complainant’s details were omitted in error from the due diligence process. It was explained that the omission was a genuine oversight by Noonans. The due diligence information for the Complainant was subsequently sent to the Respondent by email on 10thMarch 2015.
By email to the Noonans HR representative on 12thMarch 2015, the Respondent’s HR representative advised in relation to the Complainant:-
- “Thank you for the information you have forwarded. However, in relation to Mr. O Reilly (sic) of Dundalk Bus Station, we will not be taking him on board. The date of the transfer was 28/02/2015 and on that date two officers (xxxx & xxxx) transferred from Noonans to Synergy for the Dundalk depot. Mr. O Reilly (sic) was not part of this duet, for whatever reason and so will therefore remain with Noonan’s. The TUPE [sic] information in which you forwarded for this depot, did not include details of Mr. O Reilly [sic]. This matter is closed as far as we are concerned.”
The Complainant himself emailed a representative of the Respondent on 24thMarch 2015, following a telephone call between them that morning, and stated that he had been ready to work full time hours for the Respondent for the past four weeks. The Complainant further stated that he should have been offered a redundancy package and a P45.
In a reply to the Respondent dated 25thMarch 2015, Noonans reiterated their position that the Complainant’s details were omitted in error from the transfer information and they stated their view that the Complainant was entitled to transfer to the Respondent’s employment under his existing terms and conditions of employment. The Respondent was encouraged to make direct contact with the Complainant as a matter of urgency to confirm his employment with the Respondent.
A further exchange of correspondence between Noonans and the Respondent took place between 27thMarch 2015 and 30thMarch 2015 in which Noonans responded to a number of the Respondent’s queries regarding the Complainant.
On 31stMarch 2015 a telephone conversation took place between the Complainant and the Noonans HR representative. The Complainant advised that he believed that in the circumstances that he was entitled to redundancy and he wanted his P45 as he had another job lined up. He stated that he didn’t care now about the last few weeks and that he was on medication for stress.
On 2ndApril 2015, the Respondent’s HR representative emailed the Complainant directly as follows:
- “Dear Gerard, I refer to your recent phone calls and in particular your request for your P45. On 28/02/2015 a transfer of Undertakings took place between Noonan and Synergy in connection with the Bus Éireann contract. At no stage, prior to the 28th, were any of your details forwarded to us during the “due process” period. Even though you were on sick leave and returned to work on 26/02/2015, you did not participate in the transfer. We knew nothing about you until well in to the contract. We had already been given details of the two security officers that were carrying out your duties. Therefore Gerard, we were never informed of your existence and even though you resumed duty on 26/02/2015, you did not transfer on the transfer date which was the 28/02/2015. Your employment as far as we are concerned remains with Noonan as does your P45 which I have already told you was never transferred to us. With best wishes, xxxx HR Department”.
On 27thJuly 2015, the Complainant lodged a number of complaints, including a complaint of unfair dismissal, with the Workplace Relations Commission.
Summary of the Complainant’s Case
Des Courtney, SIPTU, on behalf of the Complainant put forward the following points:-
- 1.The Complainant became an employee of the Respondent pursuant to the Regulations by operation of law on 28thFebruary 2015.
- 2.The Complainant made himself known to the Respondent on his return from sick leave in advance of the transfer date. The Respondent was formally advised by Noonans of the error in relation to the omission of the Complainant’s details from the due diligence information on 5thMarch 2015. This was only a matter of days following the transfer date of 28thFebruary, bearing in mind that the transfer date was a Saturday.
- 3.The Respondent could have taken steps to address the situation when they became aware of the Complainant but they chose to ignore the new information and sought to rely on Noonans’ acts and omissions. There was no impediment to the Complainant transferring.
- 4.The Complainant was entitled to transfer to the Respondent’s employment, as was the case with his colleagues at the Dundalk depot. The Complainant was prevented from transferring by the Respondent and this amounted to an unfair dismissal.
- 5.It is open to the Respondent to seek, through a statutory scheme, to recover from Noonans as against any award made to the Complainant for breaches of his rights.
Summary of the Respondent’s Case
Mr. Cian Cotter, B.L., instructed by Terence J. O’Sullivan Solicitors, on behalf of the Respondent, outlined the Respondent’s case as follows:-
- 1.The Respondent accepts that the transfer of the security services contract from Noonans to it comes within the ambit of the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003.
- 2.The Respondent accepts that employees of Noonans employed on the security services contract at the Dundalk Bus Éireann depot were entitled to transfer to its employment on existing terms and conditions under their contracts of employment.
- 3.The Respondent accepts that by operation of law Noonan employees engaged on the contract which transferred to the Respondent became employees of the Respondent on 28thFebruary 2015.
- 4.The Respondent states that upon the commencement of the contract on 28thFebruary 2015 it met with all employees who had transferred from Noonans and provided them with uniforms. The Complainant was not among those who had transferred.
- 5.The Respondent states that it could not have made good its obligations to the Complainant as it was completely unaware of the Complainant’s existence due to the omission by Noonans in respect of the Complainant’s details.
- 6.The Respondent states that the Complainant did not transfer to its employment, that he took no steps to take up employment with the Respondent, that he did not wish to transfer to the Respondent and that he had sought his P45.
- 7.The Respondent states that its position was that the Complainant had remained in the employment of Noonans.
8.The Respondent states that it did not dismiss the Complainant.
Section 6 of the Unfair Dismissals Act 1977, as amended, sets out in relevant part as follows:-
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Accordingly there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it.
Discussion and Findings
The Court has had the benefit of substantial written and oral submissions and oral evidence in this case. The Court has also been provided with and reviewed copies of authorities upon which the parties sought to rely.
It is common case between the parties, and the Court accepts for the purpose of this case, that the transfer of the contract from Noonans to the Respondent came within the ambit of Regulation 3 of the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131).
Regulation 4 of the Regulations provides that the transferor's (in this case, Noonans) rights and obligations arising from a contract of employment existing on the date of a transfer, by reason of such transfer, be transferred to the transferee (in this case, the Respondent). A fundamental obligation of an employer under a contract of employment is to employ the employee. Hence, on a transfer taking place, the obligation to employ the relevant employees of the transferor is transferred by operation of law to the transferee.
It is argued, firstly, by the Respondent that due to an omission by Noonans it was unaware of obligations owing to the Complainant. It is not disputed, and the Court is fully satisfied for the purposes of this case, that the Complainant was a party to a contract of employment existing on the date of transfer, 28thFebruary 2015, and was therefore a relevant employee for the purposes of the transfer.
It follows, therefore, that the rights and obligations arising from the Complainant’s contract of employment transferred to the Respondent on the date of transfer. This occurred by operation of law and was wholly unaffected by the failure by Noonans to notify the Respondent of the transfer to it of rights and obligations owing to the Complainant. While the frustration and inconvenience caused to the Respondent by Noonans’ omission might be understandable, it does not in any way affect or diminish the rights and obligations in law owing to the Complainant arising from the transfer.
While it is disputed by the Respondent that the Complainant made himself known to the Respondent upon his return from sick leave in advance of the transfer, it is common case that the Respondent was aware of the situation pertaining to the Complainant as of 5thMarch 2015, only a matter of days following the transfer date. Thereafter, far from seeking to meet its obligations to the Complainant, the Respondent sought to rely upon Noonans’ omission and sought to maintain a position that the Complainant remained an employee of Noonans. In the Court’s view there was no legal basis upon which it could maintain such a position. As is clear from the foregoing, the Complainant had become the Respondent’s employee as of 28thFebruary 2015.
It is argued, secondly, by the Respondent that the Complainant did not transfer to its employment, that he took no steps to take up employment with the Respondent and that he did not wish to transfer to the Respondent. In support of this position, the Respondent places heavy reliance on the Complainant’s request for his P45. The Court finds it wholly understandable in circumstances where the Respondent, in the period between 5thMarch and 2ndApril, continually and consistently maintained that the Complainant was not part of the transfer and was not their employee, that the Complainant would take steps to move on and seek alternative employment. Furthermore, he said that he needed his P45 for the purposes of claiming Job Seekers Benefit. The Court does not in any way regard the Complainant’s actions in the circumstances as such as could be construed as him not wishing to transfer to the Respondent’s employment. Notwithstanding this, the Respondent had a positive obligation to the Complainant as of 28thFebruary 2015. The Respondent, contrary to what it was obliged to do, took no steps to meet its obligations to the Complainant. The Complainant was not in any circumstance required to request employment of the Respondent – he had it as a matter of right, by operation of law.
For the foregoing reasons, the Court is satisfied that the actions of the Respondent, in failing to meet its obligations to the Complainant, amounted to a dismissal of the Complainant from his employment. The Respondent in asserting that it did not dismiss the Complainant has put forward no substantial grounds justifying the dismissal. Accordingly, in the absence of such grounds the Court finds that the dismissal was unfair.
The Complainant was unfairly dismissed. The Court is satisfied that the appropriate form of redress in this case is compensation. The Court agrees with the compensation amount of €8,000.00 decided by the Adjudication Officer.
The Decision of the Adjudication Officer is affirmed accordingly.
The Court so determines.
Signed on behalf of the Labour Court
30 January 2017Deputy Chairman
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.