Complainant

Respondent

Parties

Gediminas Gvazdauskas

Emerald Contract Cleaners (Ireland) Limited

Representatives

John Lynch BL

 Gareth Kyne, Management Support Services (Ireland) Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00056752-001

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056752-002

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056752-003

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056752-004

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056752-005

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056752-006

19/05/2023

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-00056752-007

19/05/2023

Chronology of Events

The complainant commenced working as a cleaner in the CMH in January 2005.  In 2008, he was promoted to the role of site manager.  When his employment ended in December 2022, he was earning €14.35 per hour.

In 2021, when the HSE announced the transfer of the CMH to Portrane, the cleaning contract was awarded to Derrycourt Cleaning Specialists (“Derrycourt”).  The respondent’s employees were informed of their entitlement to transfer to Derrycourt on the same terms and conditions that they enjoyed with the respondent.  The transfer took place on November 14th 2022.

In his submission, Mr Lynch stated that, while the complainant’s contract provided that he worked for 39 hours per week, his actual hours were dependent on the requirements of the CMH.  Ultimately, he was required to work 48 hours per week.  It is the complainant’s position that he worked in excess of 48 hours per week.

The complainant had some grievances with Derrycourt regarding his proposed job title and his hours of work.  In the first contract of employment issued by Derrycourt, he was referred to as a supervisor, but this was subsequently changed to “site manager.”  On November 11th 2022, to bring his hours to 48 hours a week, he was offered two hours’ cleaning on Saturdays.  He described this proposal as “insulting and disrespectful to me because I worked as Site Manager in Central Mental Hospital…”

On November 25th 2022, the complainant was offered a contract which stated that his role was,

“To undertake, as part of the team, the cleaning of designated areas to ensure that they are kept in clean and hygienic condition.”

The complainant had previously informed Derrycourt that cleaning did not form part of his contract.

It was agreed between the respondent and Derrycourt that the complainant and one other employee would remain in the CMH in Dundrum for two weeks following the transfer, to help with the decommissioning of the site.  On November 30th, it was agreed that the complainant would remain on the Dundrum site until the decommissioning was finished.  His last day of work with the respondent was December 18th 2022.

The complainant is a member of SIPTU and, at the time of the transfer, his union official, Ms Claire O’Connor, was in contact with Derrycourt on behalf of the respondent’s employees who were due to transfer.  When he returned from holidays in January 2023, the complainant did not transfer to Derrycourt.  On January 30th, Ms Avril McCarthy of Derrycourt’s HR team, wrote to Ms O’Connor and extended their offer to him to transfer “under the original T&Cs.”  The complainant sent an email to Ms O’Connor on February 1st 2023 and confirmed that he would not transfer to Derrycourt.

Summary of Complaints

CA-00056752-002:  Complaint under s.15 of the Organisation of Working Time Act 1997

The complainant claims that he was required to work in excess of 48 hours a week while working for the respondent.  Mr Lynch noted that compliance with the 1997 Act rests with the employer and, even in circumstances where an employee wilfully works excessive hours or fails to take their breaks, the employer remains liable.  In this regard, Mr Lynch referred to the decision of my colleague, Shay Henry in the case of Melissa Moran and CH Kane Limited Supervalu[1] where Mr Henry concluded that the respondent did not adequately monitor Ms Moran’s hours of work to ensure that she took her breaks and that she did not work more than 48 hours per week. 

CA-00056752-003:  Complaint under s.11 of the Organisation of Working Time Act 1997

The complainant claims that he did not always get a break of 11 hours in each period of 24 hours while he was working for the respondent.

CA-00056752-004:  Complaint under s.13 of the Organisation of Working Time Act 1997

The complainant claims that he did not get a minimum rest period of 24 hours in each period of seven days when he was working for the respondent.

CA-00056752-001:  Complaint under the Redundancy Payments Act 1967

On the form he submitted to the WRC, the complainant stated as follows:

“I was working with Emerald Cleaning Services when they engaged in the Transfer of Undertakings Process with Derrycourt Cleaning Services.  Derrycourt were not offering me the same terms and conditions of my employment on the transfer so I did not start working for them.

I continued to work for Emerald, until such time as they stopped paying me for working.”

There was no reference to this claim in the legal submission and no discussion about it at the hearing.

CA-00056752-005:  Complaint under the Unfair Dismissals Act 1977

In his submission, Mr Lynch asserted that, arising from the alleged failure of Derrycourt to offer the complainant a contract of employment post-transfer, on the same terms and conditions that he enjoyed with the respondent, he was “effectively dismissed by Derrycourt.”

CA-00056752-006:  Complaint under Minimum Notice and Terms of Employment Act 1973

The complainant claims that he got no notice of his dismissal and that he was not paid in lieu of notice.

CA-00056752-007:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Mr Lynch submitted that “Derrycourt’s non-compliance with Regulation 4(1) directly led to the termination of the complainant’s employment” and that the contract he was offered was “at direct odds” with the assurances he was offered.  Mr Lynch asserted that the termination of the complainant’s employment is encompassed by Regulation 10 of the Transfer Regulations:

“The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee are prohibited.”

Direct Evidence of the Complainant, Mr Gediminas Gvazdauskas

In response to questions from Mr Lynch, the complainant said that, when he was working for the respondent, he worked 39 hours per week plus overtime.  He normally worked from Monday to Friday and then on Saturday or Sunday.  He generally worked six days a week.  He used to swap with colleagues and work 12 days in a row and then take two days off.

During the Covid-19 pandemic, the complainant said that he and his colleagues generally worked 10 hours every day, including at weekends. 

Turning to the transfer of the cleaning contract to Derrycourt, Mr Lynch asked the complainant about the communications regarding the planned transfer.  The complainant said that he was offered the terms and conditions he had with Emerald “at the last minute.”  He said that at the first meeting he attended with Derrycourt, he was offered a supervisor’s job, which he declined.  He said he was then offered a job as a site manager.  To bring his hours to 48 hours each week, he said that Derrycourt offered him two hours of cleaning on Saturdays, which he described as “a joke.”  He said that, if he was needed, he would work as a cleaner.  He started as a cleaner and he said that he could help out if he was needed.  He said that he was disappointed that he didn’t transfer, because he had worked in the CMH for 18 years and he had made a lot of friends.

When he came back from holidays in January 2023, the complainant said that he worked for two days on the CMH site in Dundrum and he wasn’t paid.  He said that he had a meeting with Avril McCarthy from Derrycourt and with his SIPTU representative.  He said that he hasn’t got “a view about redundancy” and that he wants justice.  He said that he wants “what is supposed to be done by Irish law” and he feels that the companies thought that they could do what they liked.

Cross-examining of the Complainant

In response to cross-examining by Mr Kyne, the complainant said that he has a record of the hours he worked up to October 16th 2022.  He said that he worked 60 hours a week at that time.  He also said that he worked an eight-hour day.

Mr Kyne asked the complainant about an email sent to him by Ms Kelly to instruct him to reduce his hours.  The complainant agreed that he received this email, and he said that the hours were reduced because “Covid was finished.”  Mr Kyne said that the complainant’s hours were reduced from October 16th 2022.  In the week ending on that date, he had worked for 60 hours.  He said that, in the following weeks ending on October 23rd, October 30th, November 6th and November 13th, he worked for 60 hours each week.  For the five weeks from November 20th until December 18th, he helped with the decommissioning of the site and he said that he wasn’t working for Emerald, but for the HSE.  During this five-week period, he worked for 40 hours a week.

The complainant said that he went on holidays in December 2022 and he returned in January 2023.  He said that he got a text message from the HSE manager at the CMH who asked him to come in to help with “finishing touches” in the hospital.  He said that he worked for two days in January, but he didn’t get paid.

The complainant said that he didn’t transfer to Derrycourt and he went on social welfare and then he did courses in human resources, financial management and construction.  On the day of this hearing on October 18th 2024, he said that he had started a new job in the construction sector. 

The complainant agreed with Mr Kyne that he sent an email to Ms Kelly on October 3rd 2022 letting her know about the transfer date.  The complainant said that he was informed by the HSE on October 3rd that the transfer was happening in November.  He said that the respondent’s managers told him the week before it was due to take place.

Mr Kyne said that Ms Kelly, the director of cleaning for Emerald, was informed by the HSE that she could not confirm the date of the transfer to her staff.

The complainant said that there was a meeting of the staff on November 8th and they were given letters dated October 20th.

Mr Kyne reminded the complainant that the staff were issued with a letter on October 17th 2022, following receipt of confirmation about the transfer from the HSE.

In his submission, Mr Kyne provided the background to the circumstances in which, in November 2022, the complainant’s employment with the respondent was terminated and he was offered the option of transferring to the CMH in Portrane as an employee of Derrycourt.

The HSE had been planning to close the Dundrum site for a number of years and, in 2021, a contract for cleaning on the new site in Portrane was put out for tender.  The contract was awarded to Derrycourt.  It was agreed between the HSE, the respondent and the new contractor that the Transfer of Undertakings Regulations applied to the transfer and a due diligence exercise was completed.  In October 2022, the respondent engaged with their employees in the CMH to comply with their obligations under the Regulations.

The transfer occurred on November 14th 2022.  The respondent agreed with the HSE that the complainant and one other employee would remain working on the Dundrum site until the end of November to complete the decommissioning.  The respondent’s director of cleaning, Ms Katherine Kelly, advised the complainant to contact his union representative to advise her that he had been requested to remain in Dundrum for two weeks and also to inform the transferee that he would not transfer along with his colleagues.  The complainant’s last day of work with the respondent was December 18th 2022.  Ms Kelly’s evidence is that, until she received a letter from the Department of Social Protection in January 2023, she assumed that the complainant had transferred to Derrycourt.  On May 19th 2023, he submitted these complaints to the WRC.

CA-00056752-002, 003 and 004:  Complaints under the Organisation of Working Time Act

Mr Kyne said that if I assume that the complainant worked for 50 hours each week, he was paid for a break of one hour every day.  Therefore, for the last 10 weeks of his employment with the respondent, taking account of breaks, Mr Kyne submitted that his actual working hours were 45 hours per week.

CA-00056752-001:  Complaint under the Redundancy Payments Act 1967

In response to this complaint, Mr Kyne said that the complainant’s statement on his complaint form under this heading (on page 4 above) is factually incorrect.  Mr Kyne said that the complainant was the subject of a transfer of undertakings which occurred on November 14th 2022.  By agreement with the transferee, the complainant remained on the Dundrum site to complete the decommissioning work.  The respondent instructed him to get permission from the transferee to delay his transfer and this was sought and granted.  On November 21st 2022, Mr Stephen Conway from Derrycourt wrote to the complainant asking him to confirm that he was transferring and the date on which he would transfer.  The complainant finished decommissioning the site on December 18th 2022 and this is the date on which his job transferred to Derrycourt.

It is the respondent’s position that the complainant was not made redundant and that his job moved to his new employer in accordance with the Transfer of Undertakings Regulations. 

As it is apparent that the complainant’s job transferred to the transferee, his job was not redundant and Mr Kyne submitted that he is therefore not entitled to a redundancy payment. 

CA-00056752-005:  Complaint under the Unfair Dismissals Act 1977

On the form on which he submitted this complaint to the WRC, the complainant stated:

“I was dismissed after I did not agree to the transfer to Derrycourt Cleaning Services.”

Mr Kyne stated that it is apparent from this that the complainant is clearly indicating that it was he who refused to transfer to the transferee.  Mr Kyne referred to email correspondence from Mr Stephen Conway of Derrycourt to the complainant on November 21st 2022 which was included in the respondent’s documents for the hearing.  Mr Conway included Ms Katherine Kelly, the respondent’s director of cleaning in the email.  He asked the complainant to confirm that the decommissioning of the Dundrum site would be completed on November 30th 2022 and he asked Ms Kelly to confirm that the complainant would “no longer be needed for the decommissioning” on that date.  On November 30th, Ms Kelly wrote to Mr Conway and copied the complainant.  She told Mr Conway that the HSE requested the complainant and one other employee to work on the Dundrum site until December 14th.

Mr Kyne referred to the decision of the Labour Court in Rapier Contract Services Limited and Adina Predut[2] which quoted the decision of the High Court in Symantec Ltd v Leddy and Lyons[3].  This case concerned the appeal of a decision of the former Employment Appeals Tribunal that two employees who decided not to transfer to a new employer under the Transfer of Undertakings Regulations, were entitled to a redundancy payment. 

The relevant part of the High Court decision states as follows:

“With great respect to the arguments advanced on behalf of the Defendants/Respondents, the court disagrees profoundly with their view of the implications for Irish labour law of the ECJ's judgments in Katsikas and Merckx respectively.  The court has no doubt but that the correct view of the matter is that which has been articulated on behalf of the Plaintiff/Appellant.  As the Defendants/Respondents have rightly pointed out, Irish implementing legislation does not make any particular provision as to what will occur if employees decide not to transfer.  However, contrary to their belief, that fact operates against them.  It does not follow that if an employee decides not to transfer, a situation of redundancy automatically arises vis a vis the transferor.  It cannot do so because the fact that an employee objects to the transfer does not of itself have the effect of negativing the transfer.  It is just that an employee is not obliged to continue his employment relationship with the transferee.  However, the transfer still goes ahead unless a member state expressly provides for the contrary in its implementing legislation.  That this is so is clear from the judgment of the ECJ in Katsikas.  That Court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor.  However, he is not obliged to avail of this facility.  As the Court said, “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.”  However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ.”

In my view nothing could be clearer. If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy, it could have enacted legislation to that effect.  It has not done so.  This court is completely satisfied that by virtue of regulation 4(1) it is not possible for the Defendants/Respondents in this case to make a redundancy claim against the Plaintiff/Appellant.  In all the circumstances the court is satisfied to allow the appeals in both cases.”

In its conclusions in Rapier Contract Services, the Labour Court held that the same principle that applied to a claim for redundancy (in Leddy & Lyons) applies to dismissal and the Court decided that Ms Predut was not dismissed.   

CA-00056752-006:  Complaint under Minimum Notice and Terms of Employment Act 1973

As the complainant was not dismissed, the respondent’s position is that he has no claim regarding an entitlement to notice or pay in lieu of notice.

CA-00056752-007:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Mr Kyne submitted that the Transfer Regulations provide for an automatic transfer of employment.  The complainant was requested to transfer, but he decided not to transfer.  Referring again to decision in Leddy & Lyons, Mr Kyne submitted that no dismissal arises in circumstances in which an employee exercises their right not to transfer.

Evidence of Ms Katherine Kelly, Director of Cleaning

Ms Kelly said that she and the management team in Emerald knew for a year or two that the transfer was happening.  She said that her company wasn’t informed about the exact date of the transfer because of the need to move vulnerable patients.  The complainant was closer to what was happening on the site and he came into possession of a letter dated October 3rd 2022 from the HSE management to HSE employees in the CMH, informing them that the transfer of patients would take place on November 13th 2022.  The complainant informed Ms Kelly about the letter in an email around October 3rd or 4th.  Ms Kelly said that she contacted the HSE seeking confirmation about the date and she was informed that she shouldn’t have any knowledge of the letter.

Ms Kelly said that she and her colleague met their employees at the CMH facility on October 20th 2022.  She informed them that the cleaning contract had been won by the Derrycourt and that they were entitled to transfer to the new facility in Portrane, on the same terms and conditions that they had with Emerald.  Ms Kelly said that a team from Derrycourt came to meet the employees at the same time, and they brought translators to help them to communicate.  A second meeting with Derrycourt was held on November 8th.  The complainant attended these meeting.  Ms Kelly said that, afterwards, she contacted the regional healthcare manager in Derrycourt, Mr Stephen Conway with some queries from her employees and that he answered the queries.

Ms Kelly said that she informed the healthcare regional manager in Derrycourt, Mr Stephen Conway, that the complainant and another employee had been requested by the HSE to remain on the site to help with de-commissioning, as employees of Emerald, until December 14th 2022.  The other employee returned to Poland after her son died.  Ms Kelly referred to an email to the complainant from Mr Conway, on Monday, November 21st 2022.  A copy of this email was submitted in evidence.  In the email, Mr Conway asked the complainant to confirm if it was his intention to transfer to the respondent.  Mr Conway noted in his email that the complainant was a site manager and that he was “a 48-hour week worker” on an hourly rate of €14.35.  Mr Conway confirmed to the complainant that, if it was his intention to transfer, his terms and conditions would “remain the same.”  Mr Conway told the complainant that, while the Transfer of undertakings process was complete, he was “happy to extend the transfer window to accommodate the needs of the Dundrum decommissioning.”

Ms Kelly said that the complainant was offered a role as a site manager with Derrycourt but that he was unhappy with a line in the contract.  She said that she offered him three alternative positions in the Sandyford area which would have been a convenient distance from his home, but she thought that he transferred to the respondent.  In January 2023 however, Ms Kelly said that the complainant contacted her and asked her to say that she had no work for him.

Ms Kelly said that the two days that the complainant worked on the Dundrum site in January 2023 was on the instructions of the HSE.  Ms Kelly said that she informed the HSE that she couldn’t provide staff for the site in January and the complainant went to work for the HSE without her knowledge. 

Cross-examining of Ms Kelly

Mr Lynch asked Ms Kelly if a site manager was required to do cleaning work.  Ms Kelly replied “yes, it’s the responsibility of the manager to get the work done.”

Mr Lynch asked Ms Kelly if she replied to Mr Conway’s email dated November 21st 2022, in which he asked her to confirm when the complainant would “no longer be needed for the decommissioning of Dundrum?”  Ms Kelly replied that she told Mr Conway and the complainant that the HSE had confirmed that he and one other employee he would be required on the Dundrum site until December 14th 2022.  A copy of an email dated November 30th 2022 to this effect was included in the respondent’s book of papers.

Evidence of the Area Manager, Ms Carol Ann O’Driscoll

Ms O’Driscoll said that she and her colleagues had a great relationship with the staff on the CMH site.  She said they did incredible work during the Covid-19 pandemic and she wanted to acknowledge their efforts.  She said that communications were good between the management and staff and they understood that the transfer was very tough on them.

Ms O’Driscoll recalled that the complainant attended two meetings with Derrycourt’s managers on October 29th and November 8th 2022.  She said that all their employees were at the meetings and that they conducted the process the same way as every other transfer.

Evidence of Mr Stephen Conway, Regional Manager with Derrycourt Cleaning Specialists

Mr Conway’s recollection is that he and another manager from Derrycourt first had a meeting with the respondent’s staff on October 4th 2022, and that a second meeting took place on October 20th.  (I think the meetings may have taken place on October 20th and November 8th because the HSE had not confirmed the date of the transfer on October 4th).  Mr Conway said that two of their managers attended the meetings and they had letters prepared for the staff.  They also had one to one meetings with each employee.  Mr Conway recalled that the complainant helped with translating at the meetings.  He said that they identified the people who were transferring and they looked at their rosters.  He said that he was never informed that the complainant wasn’t transferring.

Mr Conway said that the complainant was offered a role as a supervisor on 40 hours per week.  The offer was subsequently changed to a role as a site manager on 48 hours per week.  He said that the correspondence “went back and forth a bit.”  He said that he understands that, closer to the date of the transfer, the complainant had concerns about the role.  He was then asked to remain for the decommissioning of the site and he wrote to him on November 21st to ask him to confirm his intentions.  Mr Conway said that the complainant didn’t reply to this email.

Cross-examining of Mr Conway

Mr Conway confirmed that it is the norm in the industry for site managers to do cleaning duties. 

Mr Lynch asked Mr Conway when the offer to the complainant to transfer to Derrycourt was closed?  Mr Conway replied “probably in January after the meeting with SIPTU.”

CA-00056752-002:  Complaint under the Organisation of Working Time Act 1997

These complaints were submitted to the WRC on May 19th 2023.  In accordance with s.41(6) of the Workplace Relations Act 2015, I have authority to consider a breach of the Organisation of Working Time Act 1997 (“the 1997 Act”) that occurred in the six months prior to the complaints being submitted.  The timeframe for consideration of these complaints therefore runs from November 20th 2022 until May 19th 2023.  The complainant’s last day at work with the respondent was December 18th 2022.  Therefore, the timeframe for which I can consider these complaints is from November 20th until December 19th 2022.

The respondent’s book of documents contains a series of emails between the complainant and the director of cleaning, Katherine Kelly, commencing on October 18th 2022.  In an email on that date, Ms Kelly informed the complainant that, following instructions from the HSE, “from Monday next there are no additional Covid hours.”  She went on to say that the hours during which cleaning services were to be provided were from 8.00am until 18.30pm.  From mid-November, she said that there will be a requirement for “a radically reduced service” and she asked if she could meet the complainant shortly to discuss the change.

On November 1st, it appears that the complainant sent Ms Kelly timesheets for the previous fortnight because she wrote to him asking him why he inputted additional Covid hours in the second week of the payroll.  The complainant replied and said that Ms Kelly had said that she would come back to him and send him an email with detailed hours.  Ms Kelly replied and stated that she had been very clear and that the cleaning hours are to be reduced to a 10-hour day.

From this correspondence, it is clear to me that Ms Kelly instructed the complainant, as the manager with responsibility for cleaning on the CMH campus, that “the services need to be maintained” between the hours of 8.00 and 18.30.  I understand this to mean that cleaning is to be done between these hours and not outside these hours.  The complainant was a site manager and he explained in his submission that he wasn’t a cleaner.  It was not essential for him to be on the site from 8.00 until 18.30 and it is clear to me that Ms Kelly instructed him not to claim for excessive hours.

At the hearing, the complainant said that, from November 18th until his last day at work with the respondent on December 18th 2022, he and one other employee remained on the Dundrum site to assist the HSE staff with decommissioning.  He said that he worked for 40 hours a week during this period.  I am satisfied that, in the timeframe for which I have jurisdiction to consider this complaint about excessive working hours, the complainant was not required to work more than 48 hours per week. 

CA-00056752-003:  Complaint under s.11 of the Organisation of Working Time Act 1997

This is a complaint about a breach of the complainant’s entitlement to a break of 11 hours at the end of a shift before being required to return to work for another shift.  During the period under consideration, no cleaning was being provided on the CMH site and the complainant was assisting with the decommissioning.  I am satisfied that, as he worked for 40 hours a week during this period, he got a break of at least 11 hours at the end of each working day.

CA-00056752-004:  Complaint under s.13 of the Organisation of Working Time Act 1997

This is a complaint about a breach of the complainant’s entitlement to a break of 24 hours at the end of the working week.  During the period under consideration, no cleaning was being provided on the CMH site and the complainant was assisting with the decommissioning.  I am satisfied that, as he worked for 40 hours a week during this period, he got a break of at least 24 hours at the end of the working week.

CA-00056752-001:  Complaint under the Redundancy Payments Act 1967

I am satisfied that the complainant’s role as site manager was not redundant, but that it transferred to Derrycourt Cleaning Specialists on November 14th 2022.  I am satisfied also that Derrycourt held his job open for him until he confirmed on February 1st 2023, that he did not intend to transfer.

CA-00056752-005:  Complaint under the Unfair Dismissals Act 1977

I note from the complainant’s email to Katherine Kelly on January 24th 2023, that he claimed that his last day at work was January 5th 2023.  This is incorrect, because the complainant said that he did two days’ work (for which he was not paid by anyone) on the instructions of the HSE, and not the respondent.  His last day at work for the respondent was December 18th 2022.

Taking my authority from the decision of the Labour Court in Rapier Contract Services Limited v Adina Perdut (footnote 2), the decision of an employee not to transfer their employment in accordance with the provisions of the Transfer of Undertakings Regulations is not grounds for dismissal.  I am satisfied that the complainant was not dismissed, but that his employment was terminated when he did not transfer to Derrycourt on his first day back after his holidays on January 4th 2023. 

CA-00056752-006:  Complaint under Minimum Notice and Terms of Employment Act 1973

The complainant was not made redundant and he was not dismissed and he has no claim for notice of the termination of his employment or for pay in lieu of notice.

CA-00056752-007:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Regulation 5(3) of the Transfer Regulations provides that,

If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

The claim under this heading is a claim against Derrycourt, and not against the respondent.  In any event, I do not accept that Derrycourt was in breach of the Transfer Regulations and I am entirely satisfied that it was open to the complainant to transfer to Derrycourt on the same terms and conditions that he enjoyed when he worked with the respondent.

Conclusion 

These complaints arise from the transfer of the cleaning jobs on the site of the old Central Mental Hospital in Dundrum to a new campus in Portrane.  At the time of the transfer, the complainant had been working in the hospital for 17 years and it was apparent at the hearing that he and his colleagues were trusted and valued employees.  In this unique environment, I was informed that they were “adored” by the patients and their commitment to working diligently through the Covid-19 pandemic was acknowledged by the respondent’s managers.

The complainant said that, as an outcome from this hearing, he wants “what is supposed to be done by Irish law.”  I would like to reassure him that I have examined his complaints carefully, in line with the laws in Ireland, which is underpinned by important EU directives and I have listened to his evidence and weighed it up against the evidence of the respondent’s witnesses.  I found little disagreement in the facts presented by both sides and the issues in contention are the hours of work and the complainant’s claim for compensation arising from the termination of his employment.  

The complainant lives in Stepaside in south Dublin and the 38km commute to the new campus in Portrane must have been a significant reason for deciding not to transfer to Derrycourt.  Although he could have transferred or, he could have remained working with the respondent on another site, effectively, he lost a job he had come to love and which he was good at.  I acknowledge that this was a difficult time, but I wish to reassure him that I am satisfied that the respondent managed the transfer in accordance with the law.   

CA-00056752-002:  Complaint under s.15 of the Organisation of Working Time Act 1997

I have concluded that, during the period under consideration from November 20th until December 18th 2022, the complainant was not required to work more than 48 hours per week.  I decide therefore, that this complaint is not well founded.

CA-00056752-003:  Complaint under s.11 of the Organisation of Working Time Act 1997

I have concluded that, during the period under consideration from November 20th until December 18th 2022, the complainant’s hours of work were such that it was always possible for him to take a break of 11 hours between end of a working day and the start of a second working day.  I decide therefore, that this complaint is not well founded.

CA-00056752-004:  Complaint under s.13 of the Organisation of Working Time Act 1997

I have concluded that, during the period under consideration from November 20th until December 18th 2022, the complainant’s hours of work were such that it was always possible for him to take a break of 24 hours between end of one week and the beginning of a second week.  I decide therefore, that this complaint is not well founded.

CA-00056752-001:  Complaint under the Redundancy Payments Act 1967

As the complainant’s job was not redundant but was transferred to Derrycourt Cleaning Specialists Limited on January 4th 2023, I decide that this complaint is not well founded.

CA-00056752-005:  Complaint under the Unfair Dismissals Act 1977

I have concluded that the complainant was not dismissed, but that he decided not to transfer to work with Derrycourt on January 4th 2023.  I decide therefore, that this complaint is not well founded.

CA-00056752-006:  Complaint under Minimum Notice and Terms of Employment Act 1973

As the complainant was not dismissed, he is not entitled to notice of his dismissal.  I decide that this complaint is not well founded.

CA-00056752-007:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

This complaint is not against the respondent, and, for this reason, I decide that it is not well founded.

Transfer of undertakings, hours of work, redundancy, unfair dismissal, notice