ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00051520

Parties:

	Complainant	Respondent
Parties	Piotr Kritschgau	Emerald Contract Cleaners (Ireland) Limited

Representatives

John Lynch BL

Gareth Kyne, Management Support Services (Ireland) Limited

Complaint:

Act	Complaint 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-00062947-002	19/04/2024

Date of Adjudication Hearing: 18/10/2024

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

In accordance with section 41 of the Workplace Relations Act 2015, this complaint was assigned to me by the Director General. I conducted a hearing on October 18th 2024, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaint. The complainant, Mr Piotr Kritschgau, was represented by Mr John Lynch BL, instructed by Ms Norma Redmond of Healy Law Solicitors.

Mr Kritschgau was employed as a cleaning operative by Emerald Contract Cleaners (Ireland) Limited, which trades as Emerald Facility Services, at the former Central Mental Hospital (CMH) in Dundrum. When the CMH was relocated to Portrane in north Dublin, in November 2022, Mr Kritschgau transferred to the new site with the new contractor, Derrycourt Cleaning Specialists Limited. Arising from this transfer, Mr Kritschgau and others submitted complaints to the WRC against the transferor, Emerald Facility Services, and the transferee, Derrycourt Cleaning Specialists. Mr Kritschgau’s complaints and those of three of his former colleagues were heard over one day on October 18th 2024. Mr Kritschgau and Ms Lina Leliugiene, Mr Gediminas Gvazdauskas and Mr Roman Wielinski attended all the hearings.

Mr Kritschgau and Mr Wielinski are Polish and they were assisted at the hearing by a translator, Ms Bogna Podlewska. Ms Leliugiene and Mr Gvazdauskas are from Lithuania, and they were assisted by Mr Luka Norkunas.

Emerald Facility Services was represented by Mr Gareth Kyne of Management Support Services (Ireland) Limited. Witnesses for the company were the area manager, Ms Carol-Ann O’Driscoll and the director of cleaning, Ms Katherine Kelly.

Mr John Barry of Management Support Services represented Derrycourt Cleaning Specialists Limited, and Mr Barry also attended all the hearings. He was accompanied by the HR business partner, Mr Salman Saeed, the assistant regional manager, Ms Renata Karwot, the contracts manager Ms Sue Harris and the healthcare regional manager, Mr Stephen Conway.

While the parties are named in this document, I will refer to Mr Kritschgau as “the complainant” and to Emerald Contract Cleaners (Ireland) Limited, as “the respondent.”

The Time Limit for Submitting a Complaint:

The complainant commenced working for the respondent as a cleaner in the CMH in October 2012. On November 17th 2022, in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE), his employment transferred to Derrycourt Cleaning Specialists Limited.

This complaint was received in the WRC by registered post and date stamped on April 19th 2024. In a letter accompanying the complaint form, Healy Law Solicitors stated that they submitted the form online on May 4th 2023 and by registered post on May 17th 2023. An online complaint form was not registered by the WRC’s customer relationship management (CRM) system on any date and the first notification of this complaint came in paper form on April 19th 2024.

The issue of the time limit was raised at the hearing on October 18th 2024. On October 29th, Ms Norma Redmond of Healy Law wrote to the WRC regarding the date on which the complaints against the transferor and the transferee by the complainant and his colleagues were submitted:

“It is our position that these applications were submitted on time and online through WRC in or around the 4th of May, registered post in or around the 17th of May and a phone call made on the 18th of May 2023 seeking confirmation that the applications were received as we received no email confirmation when they were submitted.”

Following this correspondence, the business solutions team in the WRC carried out an investigation into online, postal and telephone communication with Healy Law in May 2023. The telephone log shows that a phone call was received on May 18th. On May 19th, the complaints of Mr Gediminas Gvazdauskas against the transferor and the transferee were received by registered post. No complaints were received online at any stage and no other complaints were received by post until the complaints of Ms Lina Leliugiene were received December 5th 2023.

It is disconcerting to note that, when she was informed about these findings, Ms Redmond wrote to the WRC on November 15th 2024 and stated,

“All the applications received the online confirmation that they were submitted.”

There is no evidence of this email confirmation and no complaint reference numbers were generated in May 2023. This statement directly contradicts Ms Redmond’s email of October 29th, in which she said that she received “no email confirmation when they were submitted.” Based on the investigation carried out by the business solutions team, and, based on the fact that a complaint reference number was not generated by the CRM system until this complaint was received on April 19th 2024, I am satisfied that it was not submitted in May 2023 in any form.

Having established that this complaint was received by the WRC by registered post on April 19th 2024, it is clear that it was submitted more than a year after the complainant last worked for the respondent.

The time limit for submitting a complaint under TUPE is set out at clause 10(6) of the 2003 Regulations:

A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.

Section 40 of the Workplace Relations Act 2015 provided for the replacement of the office of the rights commissioner with the role of an adjudication officer and it now falls to me to decide on this matter.

In his evidence at the hearing, the complainant said that he never attended at the offices of Healy Law and that he gave the details about his complaints to his colleague. For the respondent, Mr Kyne submitted that the responsibility for submitting this complaint on time rested with Healy Law.

Clause 10(6) of the TUPE Regulations is clear, that a complaint shall not be entertained unless it is presented to the WRC within six months, or, in exceptional circumstances, within 12 months of the alleged contravention to which the complaint relates. As the complainant transferred to Derrycourt Cleaning Specialists on November 14th 2022, any contravention that may have occurred when he was employed by the respondent must have occurred before that date. As November 14th 2022 is more than 12 months before this complaint was submitted to the WRC on April 19th 2024, I have no legal authority to conduct an investigation.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that I have no jurisdiction to investigate this complaint because it was submitted outside the time limit set out at clause 10(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Dated: 08th of April 2025

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Key Words:

Complaint has been submitted outside the time limit.