Complainant

Respondent

Parties

Piotr Kritschgau

Derrycourt Cleaning Specialists Limited

Representatives

John Lynch BL

John Barry, Management Support Services (Ireland) Limited

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-00062947-001

19/04/2024

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-00062947-003

19/04/2024

In 2021, the respondent was awarded the cleaning contract for the new CMH in Portrane and the contract partially commenced in April 2021.  On July 5th that year, in preparation for the transfer of employees from the CMH in Dundrum, the respondent wrote to Emerald Facility Services (“Emerald”) requesting details to facilitate the transfer of the Emerald employees.  A copy of a document sent to Ms Avril McCarthy in the respondent’s management team by Ms Sarah Irwin in Emerald shows that the name, address, phone number and date of birth of the complainant, along with details of his job title, start date, hourly rate of pay and contractual hours were provided to the respondent on July 13th 2021.

The transfer of the patients from Dundrum to Portrane was delayed and was eventually scheduled to take place in November 2022.  On October 4th 2022, Emerald’s employees attended a meeting in Dundrum at which the transfer process was explained.  The complainant was present at this meeting, which was hosted by the respondent’s regional healthcare manager, Mr Stephen Conway.  Mr Conway informed the employees affected by the transfer that they were entitled to transfer to Portrane and that, if they decided to transfer, they would do so under the same conditions that they had with Emerald. 

On October 13th 2022, Ms Irwin in Emerald sent updated details of each employee to the respondent.  In anticipation of the mid-November transfer, information about accrued holidays was prepared.  At this stage, the complainant’s hourly rate of pay was €11.55.  He was entitled to be paid time and a half for the first four hours of overtime and double time for hours after that.  He was also entitled to double time on Sundays.  The information provided to the respondent indicated that the complainant was contracted to work 40 hours per week.

On October 20th 2022, the complainant attended a one-to-one meeting with Mr Conway.  At this meeting, he was given a letter (dated October 11th 2022) confirming that the contract for cleaning the CMH had been awarded to the respondent and that he was entitled to transfer to Portrane based on his service from July 2006 with Emerald and that, with the exception of any pension arrangements, his terms and conditions would not be affected.

On November 14th 2022, the CMH transferred to Portrane.  The complainant transferred his employment to the respondent on the same date in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The complainant commenced working as a cleaner for Emerald in the CMH in October 2012.  At the date of the transfer, he earned €11.55 per hour, with time and a half for the first four hours of overtime, and double time after that.  He was paid double time for working on Sundays.  The complainant worked 48 hours per week on the Dundrum site and, during the Covid-19 pandemic, he frequently worked more than 48 hours.

I note from a submission provided to the WRC in advance of the hearing that, on October 20th 2022, the complainant received a letter (dated October 11th 2022), from Mr Stephen Conway, the regional healthcare manager for the respondent, confirming that he had received information about his terms and conditions from Emerald.

In an email to their employees on October 17th 2022, Ms Katherine Kelly, director of cleaning for Emerald, informed the complainant and his colleagues that the proposed transfer date was November 13th 2022.  This was then changed to November 14th.

On November 14th 2022, in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE), the complainant’s employment transferred to the respondent.  On the form he submitted to the WRC on April 19th 2024, he said,

“My terms and conditions of employment are different to my previous employer.”

He also stated.

“My terms and conditions are different.”

It is the complainant’s case that the respondent has consistently failed to observe the terms and conditions of his employment with Emerald.  He claims that, in this regard, the respondent has contravened Regulation 4(1) of the TUPE regulations which provides that,

(1)           The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

Evidence of the Complainant, Mr Piotr Kritshgau

The complainant said that, in Dundrum, he cleaned six patients’ rooms; now he has to clean 12 rooms.  He also does the gym, kitchen, dining room, conference room and a big hall.  In Dundrum, he worked with one patient who was isolated, now he has two.  He said that more people are working on security in Portrane compared to Dundrum.

The complainant said that his start and finish time is different now and his commuting time is longer.  He said that his hourly rate is the same.  He used to work from Monday to Friday and every second weekend. Now he works from Monday to Friday and every second Sunday. 

Cross-examining of the Complainant

The complainant said that the rooms are bigger in Portrane, and all the patients have bathrooms.  He also has to clean a gym, a kitchen and a big hall.  He agreed that Emerald could change his hours of work, depending on the needs of the CMH.  He said that he needs more time to clean the larger space.

The complainant agreed that Portrane is a more modern facility and that there are more security people employed.  He agreed that there is an opportunity in Portrane to work additional hours.

The complainant lives in Dundrum and when I asked him why he transferred to Portrane, he said that he liked the staff he used to work with and he likes the patients.

Evidence of the Complainant’s Colleague, Mr Roman Wielinski

Mr Wielinski said that soon after he moved to the hospital in Portane, his duties were extended.  He said that he didn’t do the same work in Dundrum.  He said that the patients in Portrane have big rooms and large bathrooms with glass walls and he wasn’t doing this type of cleaning with Emerald.

In Portrane, Mr Wielinski said that he cleans 18 bedrooms and bathrooms, whereas, in Dundrum, he only cleaned bathrooms, showers and a small office, a dining room and a hall.  He said that he used to work from 7.00am until 3.00pm and now he works from 8.15am until 5.45pm.  He works from Monday to Friday and every second weekend, as he did when he worked in Dundrum.

Mr Wielinski said that what he objects to in his new role is that he has too much space to clean.  He thinks he should have three people working with him.  He complained also that his hourly rate has been reduced.  He said that, for a couple of months, he was overpaid.

Cross-examining of Mr Wielinski

Mr Barry asked Mr Wielinski about his duties when he worked with Emerald and he repeated that he cleaned wards, toilets and hallways.  He accepted that he was employed as a cleaner, but he said that the space in Dundrum was smaller, compared to Portrane.  He said that he also fills the dishwasher.  He said that he had a meeting about washing the dishes and he was told by a manager that this wasn’t part of his job.

Mr Wielinski said that he didn’t raise a grievance about his concerns about having to clean a larger space or about dishwashing duties.

Mr Wielinski agreed with Mr Barry that he transferred to the respondent on his normal hourly rate of pay but that he thinks his pay should be higher. 

In response to questions from me, Mr Wielinski said that he is unhappy with the extended cleaning duties that he has and his lower hourly rate.  He said that, in Portrane, patients cook for themselves and he has to clean up after them.  He said that there are a lot of glass surfaces to be cleaned.  He said that he was assured that he would have the same job, on the same terms and conditions.

In his submission in response to this complaint, Mr Barry noted that the complaint form contains no details regarding what terms and conditions have not been observed by the respondent and, for this reason, the respondent is unaware of the specific claim against them.  Mr Barry submitted that the respondent is very familiar with the TUPE Regulations and that transfers of employment happen as a matter of course in the contract cleaning industry.  The respondent is also fully aware of the obligation on them to ensure that the terms and conditions of employees are protected during the transfer and the processes that must be followed to ensure compliance with the Regulations.

It is the respondent’s position that, on November 14th 2022, the complainant transferred from Emerald to the respondent on his original terms and conditions of employment and that, since the transfer, his terms and conditions are the same as they were before he transferred.

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

Mr Conway said that he was given responsibility for the transfer of the employees from Emerald to Derrycourt.  The Covid-19 pandemic and infrastructural issues on the Portrane site caused the transfer to be delayed.  He said that, when they got a confirmed date from the HSE, they engaged with the management in Emerald.

Mr Conway’s recollection is that he and another manager from Derrycourt first had a meeting with the group of Emerald employees in Dundrum on October 4th 2022, and that they then had one-to-one meetings on October 20th.  Mr Conway said that he and another manager attended the meetings and they informed the employees about their rights under the Transfer Regulations.  They had letters prepared for the staff to issue at the meetings on October 20th.  He said that they identified the people who were transferring and they looked at their rosters.  He said that he then engaged with the managers in Emerald to determine the number of employees transferring.  In the end, five employees transferred to the respondent.

Regulation 4(2) of the Transfer Regulations provides as follows:

Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

I have considered the submissions presented by both sides and I have examined the documents related to the meetings that took place in October 2022 and the letter issued to the complainant to confirm the terms of the transfer of his job to the respondent.  

In February 2023, the complainant submitted a complaint to the WRC under the Payment of Wages Act and I issued a decision on that complaint in July 2023.  The complaint arose from a payroll error that resulted in the employees who transferred from Emerald to the respondent being paid the overtime rate of time and a half, €17.33, instead of the flat hourly rate of €11.55.  The complainants were paid the wrong rate of pay from the date that they transferred to the respondent on November 14th 2022, until sometime January 2023, when the error was rectified.  For each of the five employees, the over-payment amounted to around €2,000.  The respondent arranged for the money to be repaid and around €38.00 was deducted from their weekly pay over a period of 12 months.

I have no doubt that this mistake on the part of the respondent, coupled with the long commute for some of the employees and the changed working environment in Portrane, contributed to a sense that the transfer to the new facility wasn’t without its challenges.  While I acknowledge that the move was difficult in certain respects, the working environment was new and modern and, and, from a cleaning perspective, this must have been a positive change compared to the old buildings in Dundrum.  It was apparent to me that the complainant was committed to his job and that he was particularly loyal to the patients.

I am satisfied that the respondent complied with its obligations under Regulation 4(2) above.  Every job is subject to change and modernisation, and I am satisfied that the changes that the complainant experienced were reasonable.  I do not accept that there were any changes to the complainant’s terms and conditions after he transferred to the respondent.  It is my view that the issues he complained about are grievances which are more appropriate for investigation under the respondent’s grievance procedure.

For the reasons I have set out in the previous section, I decide that this complaint is not well founded.

Transfer of an undertaking, terms and conditions of employment