ADJUDICATION OFFICER DECISION
A Sales Executive
A Shipping Services Company
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
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).
The Complainant claims that the Respondent (The Transferee) did not honour a previous term of her employment regarding when she would retire and she was forced to retire early against her previous terms of employment. She also made various claims regarding consultation prior to the transfer and to do with the lack of written contract of employment and changes to her contract of employment.
Summary of Complainant’s Case:
The Complainant was employed with Company A in October 1998 as a Sales Executive. Her employment was terminated on June 1st, 2019. She had an unblemished record of employment and continued to fulfil all her duties completely.
In June 2014 Company A was acquired by Company B and then changed its name to the Respondents name. This acquisition was subject to a buyout plan to be completed in June 2019.
The Complainant never received a written contract of employment from any of her employers.
In mid-2015 the Complainant requested confirmation that her existing working arrangements and conditions would be honoured by the Respondent. In June 2015 the Complainant was told she would be issued with a written contract which would honour her original service. Despite correspondence from the Complainant on three occasions in March 2016, April 2016 and September 2017 no written contract was ever issued to the Complainant. She did receive an email on April 1st, 2016 acknowledging her full service of employment with the Transferor and that a contract would follow in due course. In the absence of the written contract the Complainant continued to believe that the agreement with her original employer, the Transferor, that she would work up to her 68th birthday still existed as an unwritten but agreed term of her employment.
On September 14th, 2017, and four months prior to the Complainants 65th birthday, the Complainant still had not received a written contract and the Complainant confirmed to the Respondent her intention to work up to her 68th Birthday. The Respondent told the Complainant the Company policy on retirement age was 65 and that her retirement age was under review. On the Complainants 65th birthday the Complainant still had not received a written contract and she informed the Respondent shortly afterwards that she intended to work up to the age of 68. The Respondent replied that they could only confirm her employment up to January 2019 and was it subject to review with HR at the end of 2018. In July, October and November 2018 the Complainant again informed the Respondent that she had received no contract and of her intention to work up to 2020. It seemed that the Respondent was deciding on a suitable date for the Complainants retirement based on the buy out situation. In November 2018 due to the stress of the situation and the financial implications the Complainant asked to work just until January 2020. In December 2018 the Respondent informed the Complainant that their current policy stipulated retirement at 65 and that the Complainants employment woud end in June 2019. In January 2019 at a meeting with the Respondents HR Manager the Complainant was given a copy of a Company Retirement Policy and this was the first time she saw this policy. The Complainant was denied proper representation at meetings to discuss her retirement. The Complainant was told she would have to retire on May 31st, 2019. The Complainant appealed this decision and was again denied the right to the representative of her choice. The company confirmed that the employment would end on the dame date as the end of the buy out for the Transferee. The Complainant alleges that the implied and agreed term of her retirement date of attaining the age of 68 with the Transferor was not honoured by the Respondent.
The Complainant earned 38,000 Euros per year and seeks compensation for the period of employment denied to her by the Respondent.
Summary of Respondent’s Case:
Complaints were received by the Director General of the Workplace Relations Commission by the Complainant on June 16th 2019 alleging that her former employer contravened the provisions of the Terms of Employment (Information) Act 1994, the Employment Equality Act 1998 and the Protection of Employees Transfer of Undertaking Regulations 2003 in relation to her. The said complaints were referred to me for investigation. A Hearing for that purpose was held on November 21st, 2019. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the Hearing to investigate the complaints would be held and were not present at the Hearing.
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.
The evidence of the Complainant was uncontested at the Hearing due to the nonattendance of the Respondent.
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 an 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”. The Complainant stated that the complete business entity and assets transferred to the Respondent from Company A in a transfer of undertaking. The Complainant stated she had an agreement with the Transferor to work to the age of 68 and the Transferee did not honour that term of her employment. The Complainant stated this was an implied term of her contract of employment and there was no written contract of employment to the contrary.
The Transferee’s HR policy of compulsory retirement at 65 does not legally supersede, without agreement, the Complainants terms of employment, be they implied or written, with her former employer. It is unusual, to say the least, that the Transferee, either before the transfer in a due diligence process (if any), or when the issue of the Complainants retirement age was brought to their attention, do not seem to have entered into any written correspondence on the issue with the Transferor to clarify the matter in dispute.
In relation to the claim under the Terms of Employment (Information) Act 1994 (CA-00029102-001, as the claimant was not supplied with a written statement of terms and conditions of employment within two months of commencing employment as required by Section 3 subsection (1) of the Act I award the Complainant 2,500 Euros for breach of Section 3 of the Act.
In relation to claim Number CA-00029102-002 relating to a change to the term of employment, I find the claim well founded but make no award on this claim.
In relation to claim Number CA-00029102-004 (the Equality Claim) I find the claim not well founded as this claim was not presented to the Hearing (due to the duplication of the issue with another claim).
In relation to claim Number CA-00029102-005 I find the claim well founded in that the Transferee breached an implied term of the Complainants employment in relation to her date of retirement with the Transferor and they did not establish or honour this term 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 the Act to grant up to two years salary as compensation for a breach of this section of the Act. I award the Complainant €38,000 for breach of the Act on the basis she had informed the Respondent, admittedly due to possible stress, that she would consider only working for one year after the age of 65.
In relation to claim Number CA-00029102-007 (the consultation claim) I find the claim well founded but make no award on this claim.
In relation to claim Number CA-00029102-009 (the advice claim) I find the claim well founded but make no award on this claim.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer:
Terms of employment