Complainant

Respondent

Parties

Gediminas Gvazdauskas

 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-00056752-008

19/05/2023

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 €14.35.  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 October 2012 with Emerald and that, with the exception of any pension arrangements, his terms and conditions would not be affected.

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.

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.

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.

The complainant commenced working as a cleaner in the CMH in January 2005.  In 2008, he was promoted to the role of site manager, a position he held at the time the facility was closing in November 2022.

Evidence of Ms Katherine Kelly, Director of Cleaning for Emerald Contract Cleaners

Ms Kelly said that they 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 exactly was happening on the site and he came into possession of a letter dated October 3rd 2022 from the HSE 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 2023.  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 respondent and that they could all 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 the respondent’s company came to meet the employees at the same time, and they brought translators to help them to communicate.  A second meeting with the respondent was held on November 8th.

Ms Kelly said that she informed the healthcare regional manager, Mr Stephen Conway, that the complainant and another employee had been requested by the HSE to remain on the site to help with decommissioning, as employees of Emerald, until December 14th 2022.  Ms Kelly referred to an email to the complainant from Mr Stephen Conway, the regional healthcare manager for the respondent, 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 TUPE process was complete, he was “happy to extend the transfer window to accommodate the needs of the Dundrum decommissioning.”

Ms Kelly said that she understood that the complainant was offered a role as a site manager with the respondent.  She said that Emerald offered him three alternative positions 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.

Evidence of Mr Stephen Conway, Healthcare Regional Manager

Mr Conway recalled meeting with the staff from Emerald Cleaning on October 20th and November 8th 2022, before the transfer took place on November 15th.  He said that two managers from the respondent’s company 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 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 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 Mr Conway said that he wrote to the complainant on November 21st to ask him to confirm his intentions.  Mr Conway said that he got no reply to this email.

Evidence of the Complainant, Mr Gediminas Gvazdauskas

The complainant said that he went on holidays in December 2022 and returned in January 2023.  He said that he got a text message from the HSE manager at the CMH and he was asked to come in to help with “finishing touches” in the hospital.  He said that he worked for two days, but he didn’t get paid.  He then went on social welfare benefits and he did courses in human resources, financial management and construction.  In October 2023 he got a job in construction.     

I am satisfied that, in October and November 2022, the complainant was offered the option to transfer to the respondent under TUPE, but he did not transfer.  I am satisfied that the respondent fulfilled its obligations to him regarding information and consultation as set out at Regulation 8 and that he was offered a job on the same terms and conditions that he enjoyed with Emerald Facility Services.  I find therefore, that there is no substance to his complaint that there has been a breach of the Regulations.

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

TUPE