ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011077
A Welding firm
McMahon & Company Solicitors
David McGrath, BL, instructed by Murphy’s Solicitors
Complaint Reference No.
Date of Receipt
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)
Date of Adjudication Hearing: 07/02/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 4th October 2017, the complainant referred a complaint pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations. The complaint was scheduled for adjudication on the 7th February 2018, along with other complaints pursuant to the Unfair Dismissals Act and Minimum Notice & Terms of Employment Act (subject to a report in ADJ 11074).
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant worked for the respondent from the 11th January 2016 to a disputed date in April 2017. He was paid €960 per fortnight. He claims breaches of the TUPE Regulations. The respondent denies the claim and says that the complaint is made out of time.
Summary of Complainant’s Case:
The complainant outlined that he initially worked for the company director in his capacity as a sole trader. He never received a contract of employment or notice of the incorporation.
The complainant never received documentation regarding the transfer and was not provided with pay slips. The complainant submitted that the respondent did not issue him with a letter so he was not aware of the transfer until the 9th April 2017.
In respect of the Colleague’s evidence, the complainant commented that while the Colleague said that there had been a discussion in November 2016 regarding the transfer, this only took place on the 9th January 2017
The complainant submitted that the date of contravention was the 9th April 2017. There was no letter regarding the transfer. The complainant said that there was also reasonable cause arising from the confusion and the failure to provide documentation, such as a contract and a transfer letter. The complainant sought arrears of pay and the first time he saw the respondent’s name was the pay slip on the 9th April 2017. The letter of the 16th April 2017 refers to a trading name.
The complainant submitted that an employer cannot opt out of the TUPE regulations and the respondent company was incorporation in May 2017.
Summary of Respondent’s Case:
The respondent submitted that the complaint pursuant to the Transfer of Undertakings Regulations is out of time.
The company director said that there had been a meeting in October or November 2016 relating to the transfer of undertaking. He mentioned to employees about going over to a company. He offered to put this in writing and the employees said no. They incorporated with a company name and trading name. In January 2017, he informed the employees that the transfer had taken place. The pay slips were changed to the company’s name and they were assigned a different tax number. Employees were issued P45s and then re-instated.
The Colleague outlined in evidence that in November 2016 he and the other staff were informed that their employer was to change from a sole trader to a limited company.
The respondent submitted that the incorporation took place on the 9th January 2017. The complainant had six months to make a complaint and he could not show reasonable cause. The respondent submitted that it complied with its obligations as a meeting was held.
Findings and Conclusions:
This is a complaint made pursuant to the TUPE Regulations. The claim arises from the incorporation of the respondent. The complainant worked for the company director when he traded as a sole trader. The respondent submits that the incorporation took place on the 9th January 2017.
The TUPE Regulations protects the rights of employees on the transfer of a business, where this entails a change of employer. I find that the incorporation of a company from a sole trader is a transfer of undertaking within the ambit of the Regulations. It follows that the employees of the sole trader transferred to the respondent company on its incorporation on the 9th January 2017.
There was a conflict in evidence whether the company director had informed staff in late 2016 of the pending incorporation. The Colleague said that this took place at a meeting and the staff did not want written notification. Regulation 8 is explicit on the need to inform and consult employees of a pending transfer. This is the obligation of the transferor and the transferee. It provides for the election of representatives or the provision of information in writing. These steps were not taken and this is a breach of Regulation 8.
The complaint was referred to the Workplace Relations Commission on the 4th October 2017. The respondent states that this is outside the six-month limitation period provided in section 41 of the Workplace Relations Act. The complainant states that the date of contravention was the 9th April 2017, the date he became aware of the transfer.
Regulation 8 imposes obligations on the transferor and transferee prior to the transfer takes place. The date of the transfer is, therefore, the latest date of contravention. In this case, there was a period of almost 10 months between the date of transfer and the date of the complaint. The complainant refers to not knowing about the transfer until the 9th April 2017; this is the date of contravention cited by the complainant. In Tong v Edinburgh Woollen Mill Ltd (TU9-15/2014), the Employment Appeals Tribunal affirmed that the date of contravention should not be confused with the date of knowledge. I note that the TUPE Regulations do not include a misrepresentation provision, such as that contained in section 77(6) of the Employment Equality Act, which permits the date of contravention to be the date an employee becomes aware of a misrepresentation on the part of an employer. It follows that the 9th January 2017 is the date of contravention.
I am satisfied that the complainant’s evidence is correct; he first became aware of the incorporation and transfer of the 9th April 2017. This is, of course, within the six-month limitation period. He could have challenged the failure to inform and consult during the transfer, but did not do so until October 2017. There is nothing to explain and excuse why the breach of Regulation 8 was not referred to the WRC within the six-month limitation period. It follows that the complainant has not established reasonable cause for the late submission of the complaint. It is, therefore, not well founded.
Section 41 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.
The complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations was made outside of the limitation period and is, therefore, not well founded.
Dated: 17th October 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
European Communities (Protection of Employees on Transfer of Undertakings) Regulations
Regulation 8 /information & consultation
Effect of incorporation
Date of contravention
Date of knowledge / misrepresentation