ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00017785
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Guard | A Security Company |
Representatives | Paul Hardy SIPTU | John Brennan, IBEC West |
Complaint(s):
Act | Complaint/Dispute 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) | CA-00022710-001 | 19/10/2018 |
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) | CA-00022710-002 | 19/10/2018 |
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) | CA-00022773-001 | 22/10/2018 |
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) | CA-00022773-002 | 22/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00022773-004 | 22/10/2018 |
Date of Adjudication Hearing: 26/06/2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 and following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.
Background:
The Complainant has been employed as a Security Officer’s at an office complex since November 2001. The Complainant was originally employed by a property management company until he transferred to the Respondent under a transfer of undertaking in 2010. In 2015 the Complainant transferred to another company (Company A), when the latter took on the contract under a transfer of undertaking.
A further change took place in May 2018, when the Respondent took over the contract again from Company A, under a transfer of undertaking.
The Complainant submitted a complaint, to the WRC on 12 October 2018, under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003. (TUPE Regulations) The specific complaint related to an allegation that the Respondent did not consult with the Complainant in relation to a transfer of undertaking which was planned to come into effect on 5 June 2018. This complaint was allocated the file reference: ADJ 17482 and the specific complaint reference: CA-00022589-001.
On 19 October 2018, the Complainant submitted a further complaint to the WRC, which was allocated the file reference: ADJ 17785 and the specific complaint references as follows:
1. CA-00022589-001: a complaint under the TUPE Regulations alleging that the Respondent did not consult with the Complainant in relation to a transfer of undertaking which was planned to come into effect on 5 June 2018. This complaint was identical to that submitted on 12 October under reference ADJ 17482/ CA-00022589-001.
2. CA-00022589-002: a complaint under the TUPE Regulations alleging that the Respondent (the transferee) did not observe the terms and conditions transferred from his previous employer (the transferor).
On 22 October 2018, the Complainant submitted a further complaint to the WRC. This complaint was allocated the same file reference (ADJ 17785) as the complaint submitted on 19 October 2018. On this occasion, the complaint consisted of four specific complaints, which were allocated specific complaint references as follows:
1. CA-00022773-001: a complaint under the TUPE Regulations alleging that the Respondent did not consult with the Complainant in relation to a transfer of undertaking which was planned to come into effect on 5 June 2018. This complaint was identical to that submitted on 12 October under reference ADJ 17482/ CA-00022589-001 and on 19 October under specific complaint reference CA-00022589-001.
2. CA-00022773-002: a complaint under the TUPE Regulations alleging that the Respondent (the transferee) did not observe the terms and conditions transferred from his previous employer (the transferor). This complaint was identical to that submitted on 19 October under specific complaint reference CA-00022589-002.
3. CA-00022773-003: a complaint under the Employment Equality Act 1998, alleging that he had been discriminated against by the Respondent by way of victimisation. This complaint was subsequently withdrawn prior to the Oral Hearing.
4. CA-00022773-004: A complaint under the Industrial Relations Act, 1969, in relation to a disciplinary matter.
At the commencement of the Oral Hearing it was confirmed by the Complainant that his complaint could be consolidated into and heard under the following complaint references:
1. CA-00022773-001 - the TUPE complaint in relation to consultation. 2. CA-00022773-002 - the TUPE complaint in relation to transfer of terms and conditions. 3. CA-00022773-004 - the Industrial Relations claim in relation to the disciplinary matter.
All other complaints having been withdrawn, the hearing proceeded in relation to the three complaints set out above. |
Summary of Complainant’s Case:
According to the submissions made on his behalf, the Complainant contends that (a) he has accrued six days of paid annual leave from before the transfer which have been disavowed by the Respondent and (b) the provisions of Regulation 8 of the 2003 Regulations regarding information and consultation before transfer were breached.
The Complainant submitted that the central issue is essentially whether the Respondent, as the transferee, has responsibility towards the Complainant in respect of accrued annual leave and has liability for the breach of Regulation 8 and is, therefore, properly the respondent in respect of the complaints.
In support of the Complainant’s complaint, specific reference was drawn to Article 3 (1) of Directive 2001/23/EEC of 12 March 2001 and Regulations 4 and 10(5) of the 2003 regulations (which implemented the 2001 directive). Based on these, the Complainant contends that, with effect from the transfer of undertaking in May 2018, the Respondent, as the transferee, is “the employer” having liability in this regard.
Additionally, the Complainant’s representative referred to the CJEU case of Berg v Besselsen [144 & 145/87 (5 May 1988)] In this regard, the Complainant submitted that it is not only contractual obligations which transfer but that liabilities arising out of other acts done by the transferor in relation to an employee, such as conduct amounting to sex discrimination and liability in tort, merely carried over, since these arise from the employment relationship. It was further submitted that there is no reason why the same principle should not apply to liabilities which an employer may incur for failure to comply with statutory information and consultation requirements, as well as to contractual liability for paid annual leave.
It was submitted that the Complainant was docked pay in pay periods 23 and 25 of 2018, in respect of six days of annual leave. It was submitted that this caused significant inconvenience and annoyance for the Complainant, who as a result is seeking a decision that his complaints are well-founded and requiring the Respondent to pay compensation of such an amount as is just and equitable in the circumstances in respect of (a) accrued annual leave foregone and (b) breach of information and consultation requirements. |
Summary of Respondent’s Case:
Background: The Respondent submitted that, as part of a multinational security group, they provide security solutions to a wide range of clients in various industries and customer segments.
It was submitted that the Complainant’s employment transferred to the Respondent, under the Transfer of Undertakings Regulations on 7 May 2018, thereby recognising his continuous service since 1 January 2002.
Response to substantive complaints:
1) Transfer of Undertakings complaints - CA-00022773-001/002
Background to the complaint: It was submitted that the Respondent successfully bid on the national contract for the provision of security services at the corporate offices of a large client at locations spread throughout the country. It was submitted that the Complainant, who worked at one of those offices, was transferred in accordance with the Transfer of Undertakings Regulations in May 2018.
According to the Respondent’s submission, when commercial discussions had concluded with the client, their (the Respondent’s) branch manager (Mr A) attended the location, at which the Complainant worked, i.e. 18 April 2018, to meet with the Complainant and his colleagues and commence the consultation process pursuant to Section 8 of the Regulations. The Respondent submitted evidence a copy of the information pack provided at this meeting to the staff who were transferring.
The Respondent submitted that, following that meeting, they received an email from the transferor, on 18 April 2018, instructing them not to engage further with the employees until they (the transferor) coordinated these meetings. According to the Respondent, being cognizant of their obligation to consult with the employees in good time before the transfer takes place, they replied to the transferor seeking contact details for all staff so that they could arrange for the consultation meetings. The Respondent submitted that the transferor was tardy in responding to this request, but they eventually provided the detail. The Respondent submitted email correspondence in support of their submissions in this regard.
According to the Respondent, they provided the Complainant with a number of forms to confirm personal and employment details. The Respondent stated that these forms were completed by the Complainant and returned, signed and dated 18 April 2018.
The Respondent submitted that the Complainant recorded, on the TUPE information form, that he was entitled to 25 days annual leave and that he was not carrying over any annual leave at the time of the transfer. According to the Respondent, due diligence information provided by the transferor did not confirm whether the Complainant was carrying over an annual leave balance.
According to the Respondent’s admission, due to inconsistent information being received from the transferor regarding employees who were transferring, the Respondents HR Manager (Ms B), requested updated due diligence information on numerous occasions for months pre and post transfer. It was submitted that this information finally clarified that the Complainant had no outstanding annual leave balance at the date of the transfer. The Respondent provided evidence as to the email communications between the Respondent and the transferor during the period April 2018 to January 2019.
The Respondent submitted that the Complainant took his remaining annual leave balance for 2018, which totalled 19 days, in June, October and November of 2018. The Respondent submitted documentary evidence in this regard.
Respondent’s position: In their response to the Complainant’s TUPE claims, the Respondent made specific reference to Section 8 (6) of the Protection of Employees on Transfer of Undertakings Regulations 2003, which states “employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer”.
The Respondent drew particular attention to the phrase “reasonably practicable” and suggested that this clearly allows some discretion around the 30-day information/consultation period. The Respondent submitted that, in this case, it was not reasonably practical for the Responded to provide information to the employees concerned 30 days before the transfer took place due to the fact that the transferor refused to provide contact details for those employees and circumvented their attempts to engage 2018.
According to the Respondent’s submission, they did provide the information required under Section 8 (6) in good time and, as the Complainant had worked for the previously, he was aware how the transfer process worked and what would occur. The Respondent pointed out that the obligation to provide information under Section 8 is on both the transferor and the transferee in respect of any measures envisaged in relation to the employees concerned. According to the Respondent, no measures were envisaged and nothing changed for employees as a result of this transfer. The Respondent also submitted that the Complainant did not suffer any detriment as a result of the transfer.
With regard to the Complainant’s claim that they did not observe the terms and conditions that transferred from his previous employment with the transferor, the Respondent submitted that the Complainant transferred to them with a contractual entitlement for 25 days paid annual leave. The Respondent further submitted that, based on the information provided by the Complainant in his TUPE form of 18 April 2018 and the confirmation received from the transferor on 16 January 2019, they are satisfied that the Complainant had no outstanding annual leave on the date of transfer and he received the remainder of his annual leave entitlement (19 days) between May and December 2018. Consequently, the Respondent contends that the Complainant’s contractual annual leave entitlement, on the date of the transfer, was observed.
Without prejudice to the position as set out above, the Respondent submitted that, if it is the Complainant’s position that he had an outstanding balance of annual leave on the date of transfer, then the Respondent would argue that his cause of action should be against his former employer (the transferor) as they failed to comply with the provisions of the Security Industry ERO 2017 (S.I. No 231 of 217).
In support of the submission in this regard, the Respondent submitted a copy of the ERO and made specific reference to Section 16 which provides that: “holiday balance will be notified in writing by the outgoing contractor to both the incoming employer and the worker within two weeks of the final payroll, at the latest”. According to the Respondent, the information received from the transferor was incomplete and it was not until January 2019 that the transferor finally confirmed that no holidays were due to the Complainant on the date of transfer. The Respondent submitted that they can only work of the information provided and contended that the Complainant’s complaint should therefore be against the transferor not the Respondent.
In further support of their position in this regard, the Respondent referred to the Labour Court case of Top Security v A Group of Workers [DWT 071], wherein the Court found that in certain situations in relation to annual leave, “the transferor may not escape liability for its wrongdoing”. While acknowledging that the aforementioned case was taken under the Organisation of Working Time Act, the Respondent nonetheless submitted that the same principles apply in the within case.
According to the Respondent, the transfer occurred, on 7 May 2018, which was after the end of the statutory leave year. The Respondent submitted that, if the Complainant had an outstanding balance of annual leave at the date of transfer, they (the Respondent) could only be liable for any balance accrued between 1 April 2018 and 7 May 2018, which they calculated would be equivalent to about two days.
The Respondent submitted that the Complainant’s former employer, the transferor, should have provided him with an opportunity to take any annual leave accrued prior to 31 March 2018 or agreed in writing to extend the period by six months in accordance with the OWT Act and the Labour Court determination in the above referenced case. The Respondent submitted that they were neither notified of an outstanding balance of leave nor an agreement to extend the period within which the leave could be taken, prior to the date of the transfer.
According to the Respondent, the Complainant may have a cause of action against the transferor in relation to annual leave accrued but not taken prior to 31 March 2018 and that the transferor should not be able to “escape liability for its wrongdoing”, in circumstances where it failed:
a) to provide a Complainant the opportunity to take annually before the end of the year within which is accrued, b) to reach an agreement with him to extend that period by six months in accordance with the provisions of the Organisation of Working Time Act, and/or, c) to provide the correct information to the Respondent on the date of transfer in line with S.I. No 231 of 2017.
In conclusion, the Respondent submitted that, due to the actions of the transferor, they were left with no alternative but to exercise the discretion permitted by Section 8 of the Regulations, regarding the 30-day information/consultation period. According to the Respondent, the Complainant received the information required “in good time before the transfer”, and no detriment was suffered by the Complainant as a result of this. The Respondent further submitted that they complied with their obligations under Section 8.
With regard to the Complainant’s claim that his terms and conditions were not observed post-transfer, the Respondent submitted that all rights and obligations which arose from the Complainant’s contract at the date of transfer have been preserved post-transfer. The Respondent further submitted that, according to the information received, the Complainant had taken all annual leave accrued up to the date of the transfer and the remaining 19 days were granted throughout the rest of that leave year, at the Complainant’s request.
2) Industrial Relations dispute - CA-00022773-004
Background to the complaint: According to the Respondent’s submission, on 29 June 2018, a senior staff member of the Client reported that he had been locked into the office, for a period of 45 minutes, at the end of the day, as security left prior to him and set the security alarm, which was activated when he went to exit the building.
The Respondent submitted that, on the evening in question, the Complainant was the security guard on duty and that he had not completed final checks of the building before leaving, which resulted in lights being left on and employee still being present in the building. According to the Respondent, this resulted in the security alarm being activated and a mobile security unit being discharged to secure the building, as the Complainant was contactable after he left.
According to the Respondent, this resulted in the Client requesting immediate investigation of the incident and removal of the Complainant from the site until the investigation had concluded. The Respondent submitted that the Complainant was notified of the allegation on 2 July 2018 and was suspended with pay pending investigation.
The Respondent went on to provide details of the procedures initiated, which included an investigation into the incident and a disciplinary hearing which took place on 9 August 2018. According to the Respondent, the Complainant’s response to the allegation was that it was a mistake and that employees of the Client should know what time the building closes.
According to the Respondent, it was the Complainant’s responsibility to ensure the security of the premises, which includes checking that all employees have left and lights are turned off before locking up and setting the alarm. It was submitted that the Respondent considered the Complainant’s failure to do so could have had serious health and safety and security implications for the Client’s employee. It was further stated that this could then damage the relationship between the Respondent and the Client.
The Respondent submitted that the Disciplining Officer issued the Complainant with a 12-month written warning on 16 August 2018. It was submitted that the Complainant exercised his right to appeal this decision and an appeal hearing took place on 20 September 2018. According to the Respondent’s admission, the Appeals Officer reduced the sanction to a six-month verbal warning on the basis that, while noting the seriousness of the situation and the Complainant’s failures in relation to the lack of procedures, the allegation that the Complainant had left the building early was not proven.
According to the Respondent, the Complainant was afforded the rights of natural justice and fair procedure. It was further submitted that, the six-month verbal warning, which was effective from 16 August 2018, expired on 15 February 2019 and was no longer live on the Complainant’s disciplinary record.
Respondent’s position: It is the Respondent’s contention that there is no case to be heard under the Industrial Relations Acts, due to the fact that the sanction the Complainant is appealing expired on 15 February 2019, following the expiry of the six-month sanction period and is no longer live on his personnel file. In support of the position in this regard, the Respondent referred to the Labour Court recommendation in the Tesco Ireland Ltd v A Worker [LCR 21953], where the Court found that in circumstances where the sanction has expired there was “no decision it could make on the substance of the within matter could have any effect on the worker concerned”.
Without prejudice to the above stated position, the Respondent submitted that the sanction of a six-month verbal warning was fair and lenient in the circumstances. It was also submitted that the procedure followed was in line with the principles of natural justice and fair procedure.
In addition, the Respondent submitted that Section 13 of the Industrial Relations Act only permits and Adjudication Officer to make a recommendation when investigating such disputes and that he/she is not allowed to make specific findings as to what they consider the outcome of an internal investigation or grievance should be. The Respondent submitted that is the role of an Adjudication Officer with regard to Industrial Relations claim, to assess whether the process conforms to the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures (S.I. 46 of 2000).
Consequently, in conclusion, the Respondent submitted that there is no case to be heard under the Industrial Relations Act, the matter of an expired verbal warning is a moot point as it has expired and no longer remains in the Company’s disciplinary record. |
Findings and Conclusions:
CA-00022773-001
Section 8 of the European Communities (Protection of Employees on Transfer of Undertaking) Regulations, 2003 (S.I. No 131/2003) sets out the requirements on both the transferor and the transferee in relation to information and consultation regarding the transfer, as follows:
8 “(1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -
(a) the date or proposed date of the transfer;
(b) the reasons for the transfer;
(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them
and
(d) any measures envisaged in relation to the employees.
(2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.
(3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.
(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.
(5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.
(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:
(a) the date or proposed date of the transfer;
(b) the reasons for the transfer;
(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;
and
(d) any measures envisaged in relation to the employees.
(7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.”
The evidence adduced on behalf of the Respondent suggests that commercial discussions between the Client and the Respondent, in relation to the transfer of the contract, concluded sometime on or before 18 April 2018, which was some 20 days in advance of the date of transfer, 7 May 2018. The evidence adduced, particularly at the Oral Hearing, indicates disagreement between the Complainant and the Respondent with regard to nature and timings of the consultation that took place once the contract details had been agreed with the Client. In this regard, I also note the Respondent’s evidence to the effect that the transferor requested the Respondent to delay any meetings with the staff being transferred until they (the transferor) had an opportunity to communicate with those staff first.
Based on the TUPE Information document, which was signed and submitted by the Complainant on 18 April 2018, it is reasonable to conclude that he was in receipt of information pertaining to the transfer at latest on that date. I was also provided with a copy of the TUPE Welcome Pack, which was provided to the Complainant in advance of the transfer. Having reviewed same, I find it to be quite comprehensive, particularly in a context where the Complainant had been previously employed by the Respondent, between 2010 and 2015, and would therefore have been familiar with them as employers.
In their submission, the Respondent contended that the Complainant suffered no detriment from the fact that, due to circumstances outside of their control, they were not in a position to consult with the Complainant any earlier than 18 April 2018. Having carefully considered all of the evidence adduced, in this regard, I am satisfied that it is a reasonable contention for the Respondent to make.
Based on the above, the issue for consideration is clearly whether or not Section 8 (3) of the Regulations, as set out above, provides the Respondent, as they contend, with any discretion or leeway in relation to the 30 day requirement. The provision states that transferee should provide the information “where reasonably practicable” not later than 30 days before the date of transfer. As already set out above, the evidence suggests that information passed between the Respondent and the Complainant, at latest, 20 days prior to the date of transfer.
In the context of all the circumstances pertaining at that time, as set out above, and given the overall bone fides of the Respondent in relation to the proper execution of the transfer, as evidenced in the documentation submitted, it would not be unreasonable to conclude that they should be given the benefit of the “reasonably practicable” clause in Regulation 8 (3)
However, notwithstanding the above view and the mitigating circumstances as already outlined, the Respondent’s timeframes in relation to the provision of information to the Complainant about the transfer represents a breach of Regulation 8, albeit technical as opposed to blatant in nature. Consequently, I find that the Complainant’s complaint in this regard is well founded.
CA-00022773-002
The Complainant’s contention, based on his original complaint submission, is that, at the date of the transfer of his employment to the Respondent, i.e. 7 May 2018, he enjoyed an annual leave entitlement of 25 days. The Complainant further contends the Respondent’s position, that they would only honour annual leave in the May to December 2018, would result in him losing out on 10 days annual leave payment.
The Respondent, on the other hand, contend that they are only responsible for the Complainant’s leave from the date of transfer and that, on that basis, his leave entitlements were honoured. In this regard, the Respondent provided evidence that indicates that, in the period between the date of transfer and 31 December 2018, the Complainant availed of 19 days annual leave. That evidence suggests that in the eight months following his transfer to the Respondent, the Complainant availed of annual leave at an average rate of approximately 2.4 days per month, which would be slightly in excess of an average monthly accrual rate of 2.1 days, when spread across a full leave year.
Taking the above into consideration, I am satisfied that, from the date of transfer, the Respondent honoured their obligations to the Complainant in relation to his outstanding annual leave entitlement. Consequently, the only remaining matter for consideration relates to any accrued annual leave (i.e. a leave entitlement that has not been taken) that might have existed in relation to the portion of the leave year from its commencement to the date of transfer.
In considering this aspect, I note the finding of the Labour Court in the case of SIPTU v Grosvenor Cleaning Services Ltd [Determination 0440], in which the Court held that a transferor remains responsible for outstanding holidays, in particular, in relation to a leave year that has expired. Based on this, I am satisfied that, in the within case, the annual leave for which the obligation would pass to the Respondent, could only be in relation to entitlements accruing since the beginning of the statutory leave year, i.e. 1 April 2018.
Having carefully reviewed all of the evidence adduced in relation to the Complainant’s claim in this regard, I find none which supports the contention that the Complainant was carrying annual leave from the previous year. On the contrary, the two pieces of relevant evidence, in this regard, both clearly indicate that the Complainant had no outstanding or accrued annual leave at the date of transfer.
Firstly, according to the TUPE Information form completed by the Complainant and signed on 18 April 2018, he responds to the question “Do you have any carry over holidays from the previous period?” by stating “No”. In response to the follow-on question “How many days do you have?”, the Respondent inserts “Zero”.
The second piece of evidence in this regard, relates to an email dated 16 January 2019, which the Respondent received from the transferor’s Head of HR/Payroll in relation to the annual leave entitlements of employees who are transferring to the Respondent. With regard to the employees in question, including the Complainant, the email states, inter alia, “I can now confirm that they had Zero holiday balance at date of transfer” and “Holiday entitlement for both employees for 2018 should be calculated from the date of transfer”.
In his oral evidence at the Hearing, the Complainant stated that he did contact the Head of HR/Payroll in the transferor but “got no reply”. In circumstances where the Complainant considered the information provided to the Respondent by the transferor, in relation to his outstanding leave, to be incorrect, I am of the view that it behoved him to take whatever steps necessary to have the matter clarified and, if necessary, corrected. The Complainant’s failure to do so and his declaration, as contained in his TUPE Information form, that he had no outstanding leave at the date of transfer combine to raise questions in relation to the credibility of his evidence in this regard.
Therefore, taking all of the above into consideration, I find no evidence to support the Complainant’s claim that the Respondent did not observe the terms and conditions transferred from his previous employer with regard to his annual leave. Consequently, I find that the Complainant’s claim in this regard is not well founded.
CA-00022773-004 – Industrial Relations claim
Having carefully reviewed all of the evidence adduced in relation to this element of the Complainant’s complaint, it is clear that there is no dispute that the incident, which led to the initiating of the disciplinary procedures, took place and that the Complainant was the security guard on duty on that occasion.
It is also clear from the evidence that the Respondent provided a fair and balanced procedure throughout both the investigative process and the disciplinary procedure which follows that. In this regard I note the all the rights normally associated with good procedure in this regard were afforded to the Complainant. I also note that the original sanction of a 12 month written warning was reduced, on appeal, to a six-month verbal warning, based on the specific ground of appeal submitted by the Complainant.
Having reviewed the Complainant’s evidence in relation to this matter, it appears that his claim is more based on a sense of grievance that a colleague who had a similar incident was treated differently. It is a well-established practice that when dealing with issues of discipline, each case must be taken on its merits and, in that context, it would be inappropriate to give any weight or consideration to the situation as applied to another individual, who was not party to this claim.
However, notwithstanding all of the above, I am most influenced in my consideration of the Complainant’s claim by the fact that the sanction of a six-month verbal warning, which would be seen to be at the lower end of the sanction continuum in such situations, had expired and been removed from the Complainant’s personnel file almost 4 months prior to the date of the hearing.
Consequently, taking all of the above that consideration, I find the Complainant’s request for a recommendation that the letters of warning be removed from his record is now moot. I am also of the view that his claim for compensation lacks validity and credibility in the circumstances. |
Decision/Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
and
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my decisions and recommendation in relation to the Complainant’s respective complaints:
Decisions: CA-00022710-001: As this complaint was withdrawn, no decision issues.
CA-00022710-002: As this complaint was withdrawn, no decision issues. CA-00022773-001: I find that the Respondent is in breach of Regulation 8 (3) of the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 and the Complainant’s complaint in this regard is well founded.
Consequently, in line with Regulation 10 (c) of the Regulations, I award the Complainant compensation of €250, which I consider to be a just and equitable amount in the circumstances.
CA-00022773-002: I find that the Complainant’s complaint in this regard is not well-founded and is, therefore, rejected.
Recommendation: CA-00022773-004: Based on the considerations/findings as detailed above, with particular emphasis on the fact that the Complainant’s sanction is no longer live on his personnel file, I recommend that the parties accept that this now resolves the dispute. |
Dated: 16th December 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Transfer of Undertaking Industrial Relations Act |