ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008007
Parties:
| Complainant | Respondent |
Parties | A Car Park Operative | A Car Park Operator |
Representatives | Dorothy Donovan, B.L., instructed by McDonald Solicitors | Elizabeth Ryan, Mason Hayes & Curran |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010592-001 | 29/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00010592-002 | 29/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00010592-003 | 29/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00010592-004 | 29/03/2017 |
Date of Adjudication Hearing: 25/07/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
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 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant was working for Company A since 2007 and was assigned to work in the car park at this particular location in 2013 when his employer secured a contract to operate same. Company B (the respondent) subsequently became the owner of the car park but Company A continued to operate the car park. In October 2016 Company A was given one month’s notice that their contract to run the car park was being terminated and that the operation of the car park from then on would be the responsibility of Company B. Company A maintained that there was a Transfer of Undertaking and that the complainant’s contract would transfer accordingly. Company B stated that the legislation did not apply in these particular circumstances and that the complainant’s employment was the responsibility of Company A. The complainant was left without employment with effect from 14 November 2016. |
Summary of Complainant’s Case:
The complainant was dismissed and this dismissal was an unfair dismissal within the meaning of the Unfair Dismissal Acts, 1977 – 2007, pursuant to Regulations 5(4) of S.I. 131/2003 which governs Transfers of Undertakings (TUPE). If there was a Transfer of Undertakings to the respondent then they are responsible under the regulations for that dismissal. A dismissal under such circumstances is only permitted if the respondent can demonstrate that the termination was due to “economical, technical or organisational reasons which entail changes in the workforce ”. In that case the complainant would qualify for a redundancy payment under the Redundancy Payments Acts, 1967 – 2007. |
Summary of Respondent’s Case:
The TUPE regulations do not apply to the termination of a commercial contract for a service such as that between the respondent and Company A in circumstances where at no point were Company A in possession of an asset (undertaking, business or part of a business). In circumstances where there was no transfer of an asset an essential pre-condition of the TUPE Regulations has not been satisfied. The Regulations do not apply to the termination of the commercial contract between Company A and the respondent. The complainant’s claims must therefore fail. |
Findings and Conclusions:
These complaints were heard in conjunction with the complaints contained in the following complaint forms all of which have the same common background: ADJ-00006176, ADJ-00006016, ADJ-00006180, ADJ-00006190, ADJ-00006189, ADJ-00006014, ADJ-00008161. In ADJ-00006176 I examined these complaints under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. No. 131 of 2003 and concluded that a Transfer of Undertakings had not occurred in this matter. In summary I found that (a) it is accepted that no transfer of assets occurred (b) no staff transferred and (c) the previous holder of the contract did not cease to fully exist nor was a business or part of a business belonging to it transferred.
It therefore follows that the complainant’s employment did not transfer to the respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
Complaint No. CA-00010592-001: This is a complaint under the Unfair Dismissal Acts, 1977 – 2015. As the respondent was not the employer of the complainant the complaint fails. Complaint No. CA-00010592-002: This is a complaint under the Redundancy Payments Acts, 1967 – 2012. As the respondent was not the employer of the complainant the complaint fails. Complaint No. CA-00010592-003: This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. As the respondent was not the employer of the complainant the complaint fails. Complaint No. CA-00010592-004: This is a complaint under the Organisation of Working Time Act, 1997. As the respondent was not the employer of the complainant I find this complaint not to be well founded.
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Dated: 31st August 2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly