ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019348
Parties:
| Complainant | Respondent |
Anonymised Parties | A Catering Manager | A Catering Company |
Representatives | Marie O Connor SIPTU | Fiona Egan Peninsula |
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-00025193-001 | 22/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00025193-002 | 22/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00025193-003 | 22/01/2019 |
Date of Adjudication Hearing: 14/11/2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant submitted three claims to the WRC. One relating to a loss of terms and conditions when a Transfer of Undertaking took place and the other two relating to the non- payment of wages. |
Summary of Complainant’s Case:
The Complainant commenced employment in 1997. She is employed as a Catering Manager. On September 3rd 2018 a Transfer of Undertaking of her prior employer took place to the Respondent. There had been several transfers of employment since the Complainant started work and all her terms had transferred without any issues. The Complainant claims the Respondent did not honour a weekly guaranteed travel allowance, payment for overtime, her title and basic time worked and sick pay entitlement as per her previous terms of employment. The Complainant submitted the claim form to the WRC on January 22nd 2019. She stated in the claim form that the Wages due to her were due for payment on September 13th and on September 20th2018. The Complainants Union wrote to the Respondent notifying them of the Complainants Terms and conditions but they were not implemented. The Complainant was seeking restoration of her terms of employment which she enjoyed prior to the Transfer, compensation for the breach of the Transfer of Undertaking Regulations and payment of the sick pay not paid amounting to approximately 3,800 Euros. The Complainant also stated she was denied the opportunity to return to work by the Respondent when she was medically certified to return to work and this resulted in a loss of income as a result of the dispute concerning her sick pay entitlement and the actions of the Respondent. |
Summary of Respondent’s Case:
The Respondent denies that any payments are due to the Complainant and that she has been paid in full and no monies are outstanding arising from the Complainants terms of employment or the Payment of Wages Act. The Complainant was unfit to perform her specified duties and thus unable to attend for her contracted hours due to a risk assessment of a shoulder injury. The Complainant refused to sign a return to work consent form. The Respondent engaged with the Complainant over a period of time to try establish if she could return to work. The Complainant is not entitled to a further 13 weeks sick leave pay as she has used her allocated time. The Respondent accepts it’s obligations under the Transfer of Undertakings Regulations but were not provided with a copy of the Complainants contract at the time of transfer. It is submitted that the weekly travel allowance was not in the Complainants prior contract and did this clause 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)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
In the Staff Consultation form provided to the Respondent prior to the Transfer of Undertaking it stated that the Complainant was entitled to 13 weeks sick pay per year with the first two days unpaid. The Complainant stated this term of her employment was not honoured by the Respondent when the Complainant went sick after she joined the Respondent. Various analysis of the Complainants loss were submitted over two Hearings and subsequent to the last Hearing. However, at all stages the claim for wages lost submitted, related to a period after the Complainant stated in her claim form she was due for payment of the alleged loss. So technically the claim form negates the actual claims submitted because they occurred after the date the claim form stated the loss was supposed to have occurred. There was also a significant dispute between the parties about who was responsible for the loss of income occurring. It is also of note that the amounts of loss were significantly disputed and the Complainants continuing updating of her loss and the Respondents failure to clarify certain tax deductions, which it was partly relying on to defend the claim, did not render this issue easily amenable to a factual decision. I find that the claims under the Payment of Wages Act 1991 are not well founded due to the conflicting events and information proved by the parties. (Reference Numbers CA-00025193-002 and 003.) Under Section 4.(1) of the of Statutory Instrument No 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 all terms and conditions of employment transfer when a transfer of undertaking takes place. Section 4.1 states the following” The Transferor’s rights and obligations arising from a contract of employment existing on the date of the transfer shall, by reason of such transfer, be transferred to the transferee”. It was accepted a Transfer of Undertaking had occurred by the parties. In relation to claim Number CA-00025193-001, I find the claim well founded in that the Transferee breached an implied term of the Complainants employment in relation to not transferring from the Transferor the proper terms of employment of the Complainant when they took over the business. This is in clear breach of Section 4.(1) of the of Statutory Instrument No 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. An Adjudicator is entitled under Section 10 (5) C (ii) of the Act to grant up to two years salary as compensation for a breach of this section of the Act. Under Section 10 (5) (b) of the Act an Adjudicator may require an employer to comply with the Regulations and to take a specified course of action. With regard to the weekly travel allowance it was established at the Hearings that this had been paid to the Complainant, seemingly since the commencement of her employment and it was stopped by the Respondent. I require the Respondent to amend the Complainants contract of employment to include a guaranteed travel allowance of 30 Euros per week. (Reference Number CA-00025193-001) The Complainants prior terms and conditions also stipulated that she was entitled to 13 weeks sick pay per year with the first two days unpaid. I require the Respondent to amend the Complainants contract of employment to include this term in her contract. (Reference Number CA-00025193-001) The Complainants prior implied terms and conditions also stipulated that her title was Catering Manager. I require the Respondent to amend the Complainants contract of employment to include this title in her contract. (Reference Number CA-00025193-001) Given the level of effort the Complainant and her Representative had to go to re-establish these terms and the probable loss of income while doing so, I award the Complainant 3,000 Euros compensation for breach of the Act under Section 10 (5) (b) of the Act. |
Dated: 9th December 2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Transfer of Undertaking |