ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018010
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Guard | A Security Company |
Representatives |
| De Búrca Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00022939-001 | 31/10/2018 |
Date of Adjudication Hearing: 13/03/2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 andfollowing 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.
Background:
The Complainant commenced employment, on 17 February 2007, as a security guard, with a Security Company (Company A). In 2010, the Respondent took over Company A and the Complainant transferred to the Respondent under European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (TUPE).
In early October 2017, the Respondent was formally notified that they had lost the contract to provide security services to the Client at the location where the Complainant was employed. On 2 October 2017, the Respondent wrote to the Complainant advising that the contract had been lost and seeking confirmation as to whether he wished to transfer to the new operator of the contract, Company B. On 26 October 2017, the Complainant provided written confirmation of his consent to transfer to the new operator.
The Complainant’s contract of employment with the Respondent terminated on 30 October 2017 and he commenced work with Company B on 1 November 2017, at the same location where he had worked since 2007.
On 31 October 2018, the Complainant submitted a complaint under the Redundancy Payments Act 1967, to the Workplace Relations Commission. That complaint is the subject of this adjudication. |
Summary of Complainant’s Case:
According to the Complainant’s submission, he was advised by the Respondent that they had lost the contract at the client site to Company B. The Complainant further submitted that he had been informed by the Respondent that he would be transferring to the new company via TUPE Regulations. According to the Complainant, he confirmed to the Respondent on 26 October 2017 that he was happy to transfer to Company B under TUPE Regulations.
The Complainant submitted that he was introduced to management personnel of Company B, who informed him that they would not be recognising TUPE Regulations. The Complainant stated that the representative of Company B informed him that because the Client was happy with his work, they would offer him a job but only as a brand-new employee. According to the Complainant, when he queried this with the Respondent, he was informed that TUPE Regulations did apply.
According to the Complainant’s submission, as he was offered no alternative redeployment by the Respondent and because he needed to work to pay his bills he started work with Company B on 1 November 2017 as a brand-new probationary employee.
In conclusion, the Complainant submitted that he believes he is entitled to redundancy from the Respondent based on his 10.75 years of service. |
Summary of Respondent’s Case:
Preliminary Points: At the outset of their submission, the Respondent raised two preliminary points as follows:
1. The Complainant’s complaint is out of time: According to the Respondent’s submission, the Complainant’s employment with the Respondent’s terminated on 31 October 2017 his complaint to the WRC was not submitted until 30 October 2018. The Respondent submitted that this leaves the Complainant’s complaint two days outside the permitted time period within which to submit such complaints.
In addition, it was further submitted by the Respondent, in this regard, that the Complainant did not make an application for an extension of the original six-month time period.
Based on the above, the Respondent submitted that the Complainant’s complaint is statute barred.
2. The Complainant’s claim is misconceived According to the Respondent’s submission, this is not a genuine redundancy situation as the Complainant’s employment was not terminated by the Respondent nor was he dismissed by the Respondent.
The Respondent further submitted that the Complainant’s employment transferred to Company B with whom he is still employed, in the same location where he was always employed.
Based on the above, the Respondent contends that the Complainant’s claim for redundancy is, therefore, misconceived.
Substantive Arguments: Without prejudice to the preliminary points, as set out above, the Respondent made submission in relation to the substantive aspects of the Complainant’s complaint.
According to the Respondent’s submission, the Complainant was effectively TUPED to Company B on the basis that the transfer actually occurred, which is evidenced by the Complainant showing up for work as scheduled and carrying on in the same role as he always would have done. The Respondent further submitted that Company B accepted the majority of the workforce, which is a defining characteristic of a TUPE transfer.
The Respondent further submitted that it was their understanding that, after a number of weeks working with Company B, the Complainant was informed that he was subject to a wage decrease and that is continuity of service would not be recognised. According to the Respondent, the Complainant should have rightfully proceeded against his new employer under the TUPE regulations in relation to subsequent unilateral changes in his terms.
In conclusion, the Respondent submitted that the Complainant’s claim for redundancy is not properly constituted and should be refused. |
Findings and Conclusions:
Preliminary Points:
1. The Complainant’s complaint is out of time: The time frame for submitting complaints under the Redundancy Payments Acts is covered in Section 24 of the Acts, which sets the following time-limit on claims for redundancy payment: 24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—
(a) the payment has been agreed and paid, or
(b) the employee has made a claim for the payment by notice in writing given to the employer, or
(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.
(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.
(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.
(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General —
(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and
(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.
In the within case, the Complainant’s employment with the Respondent terminated on 30 October 2017. His claim for redundancy under the Redundancy Payments Acts was submitted to the WRC on 31 October 2018, which was one day after the expiry of the 52-week period, set out above under Section 24 of the Act. However, subsection (2A), provides an Adjudication Officer with the discretion to extend the time period to 104 weeks, if he/she is satisfied that the employee would have been entitled to a redundancy lump sum.
In order to consider whether or not this extension can be applied in the within case, it is necessary to establish if the entitlement to redundancy lump sum exists. In effect, this requires my proceeding to consider the Respondent’s second preliminary point, that of the Complainant’s claim for redundancy being misconceived.
2. The Complainant’s claim is misconceived Having carefully considered the evidence adduced, I am satisfied that the Respondent’s contract for the client/location, at which the Complainant was working, transferred to Company B under TUPE Regulations in October 2017.
I am further satisfied that the Complainant, having been provided with the option of transferring to Company B (the Transferee), commenced employment with the Transferee on 1 November 2017. Consequently, in line with Regulation 4 of TUPE, the Respondent’s (i.e. the Transferor’s) rights and obligations arising from the Complainant’s contract of employment transferred to the Transferee, at that point.
The evidence suggests that, following his transfer to Company B, the Complainant encountered difficulties in relation to the application of his terms and conditions of employment, which existed at the date of transfer. As a result of this, the Complainant is now seeking redress from the Respondent, who was the Transferor in the TUPE transfer, in the form of a redundancy payment claim.
Having carefully assessed the situation, I am of the view that, having willingly and freely transferred to the Transferee, the Complainant has no longer any claim against the Respondent. In this regard, I would concur with the submissions of the Respondent that the appropriate action for the Complainant would have been to seek to exercise his rights under TUPE with the Transferee.
Notwithstanding the above view, which is based on the fact that the Complainant willingly transferred to the new employer, I note the views of Edwards J in the High Court case of Symantec Ltd v Leddy and Lyons ([2010] 1 I.L.R.M. 12), where he concluded that it was not possible for the two employees in question, who had refused to transfer to the transferee under TUPE, to make a redundancy claim against the employer, who in this case was the transferor. The Judge went on to state: “…it does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-à-vis the transferor”.
Given the ruling set out in the above case, I am satisfied that the Complainant, in the within case, is distanced even further from any entitlement to redundancy, on the basis that he willingly accepted the transfer to the transferee.
Taking all of the above into consideration, I uphold the Respondent’s preliminary point that no entitlement to redundancy exists in this case and, therefore, that the Complainant’s claim in this regard is not well founded. On that basis, it follows that the Complainant’s claim for redundancy must be found to be also out of time. |
Decision:
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.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint under the Redundancy Payment Acts, is not well founded and is, therefore, rejected. |
Dated: 13th December 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Redundancy Payments Acts |