ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054649

Parties:

Complaints:

Date of Adjudication Hearing:  19/02/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Complainant submitted a number of complaints in relation to the transfer of her employment following the merger of a number of Credit Unions.

Summary of Complainant’s Case:

The Complainant was employed by Lismore and Cappoquin Credit Union (Lismore) as an Office Assistant from the 3rd December 1996 until its de facto take-over by Cáirde Credit Union (the Respondent) in January 2023.

Following the merger, the CEO of the new merged entity, Mr C attempted to unilaterally change the terms of the Claimant’s employment. The Claimant was given the option to accept these amended terms or be made redundant.

The Claimant was given notice of her purported redundancy on the 1st of May 2024 thirteen months later. Her role is NOT redundant.

The Claimant was provided with a notice of her purported redundancy on the 1st of May 2024. The Respondent tried to unilaterally alter the Claimant’s terms of employment, subjected the Claimant to an antagonistic and hostile approach and failed, refused and / or neglected to follow a fair procedure in selecting her for a purported redundancy or provide her with an exit date, leaving her in limbo since the 1st May 2024. The Claimant continues to be unaware of when her employment will come to an end.

On the 24th of May 2024, the Claimant’s representatives submitted a Data Subject Access Request (“DSAR”) on her behalf to the Respondent pursuant to the Data Protection Act 2018. Only a limited amount of documentation was disclosed by the Data Controller mainly relating to; personal loans the Claimant had as a member of the Respondent (and not as it’s employee), two sets of appraisal forms and two contracts (neither of which are her original contract or the proposed amended one). As a result, the Complainant is disadvantaged because, personal data held by and in the control of the Respondent, has not been provided to her in compliance with her data protection rights.

The Claimant remains an employee of the Respondent, as the Respondent on multiple occasions has refused to provide an exit date to either the Claimant or her solicitor.

The Claimant’s home circumstances are such that the proposed changes to her working hours and place of work as well as being left in limbo as a result of the Respondent’s conduct, unable to plan for her future or seek alternative employment, has left her extremely stressed and anxious.

The Claimant began her employment with Lismore/Cappoquin Credit Union in 1996 on a full-time basis. From in or about January 2007, she worked two full days per week. In October 2022, on the retirement of a work colleague, the Claimant began to work an extra day and has been on a three-day week since.

The Claimant’s contracts of employment clearly identify the Claimant’s role as Office Assistant. The Claimant’s days of work are clearly noted as Monday, Thursday and Friday in the Second Contract and her place of work as Main Street, Lismore with a derogation “from time to time”.

On the 20th of December 2022, the Claimant was notified of a proposed transfer of her employment from Lismore and Cappoquin Credit Union to Cáirde Credit Union. The Claimant was informed that the merger was necessary to protect jobs and the viability of the credit union.

The transfer was to take place on the 13th of January 2023. The letter (which was outside of the requisite 30 days) advised that the Claimant would maintain her existing terms and conditions of employment. The Claimant was to be provided with a new Cáirde Credit Union contract, but same was to reflect her existing terms and conditions.

The Claimant was asked to confirm the terms of her existing contract on the 17th July 2023, six months later and on the 27th November 2023, a new contract was given to the Claimant by Ms RW a HR Consultant instructed by the Respondent, with the stipulation that it must be signed within a period of less than two weeks and returned to the Respondent by no later than the 8th of December 2023.

This contract contained unilateral changes of the Claimant’s existing terms of employment. The contract was also vague and misleading. The Claimant’s place of work and hours of work were amended. The Claimant was dismayed by the Transferee’s conduct in attempting to force through these changes unilaterally or hoodwink her into accepting less favourable, detrimental terms of employment. On the 19th of December 2023, an email was sent to the CEO, Mr C, Deputy CEO Mr T OB, and HR consultant, Ms RW indicating that all seven Lismore staff would remain on their existing contracts.

The new contract contained a job description entitled “Teller / Office Assistant” and which indicated that the Claimant would now report to a Team Lead as against to the Manager or Deputy Manager. The Claimant viewed this as a demotion.

On the 16th of January 2024, a letter was issued to the Claimant regarding the signing of the proposed new contract. This letter contains the word redundancy no less than five times. The Claimant found this letter to be threatening and hostile. The letter proposed that the Claimant; “…attend a meeting with the undersigned and our HR consultant, RW, … when we will outline to you the potential impact of the imminent changes on your circumstances and discuss the options available to you”. The letter went on to threaten that “…if, following our meeting, agreement cannot be reached on the way forward, your position in Cairde Credit Union limited may be placed at risk of redundancy”.

On the 23rd of January 2024, the Claimant attended that meeting. During that purported “consultation” process, the Claimant found Mr C and Ms W condescending and demeaning towards her. The Claimant sought clarification on her contract and in particular the changes to it. She informed Mr C that this new contract did not mention the agreed days of the week that she worked i.e. her existing workdays being Monday, Thursday and Friday. Mr C informed the Claimant that she could not have these days as they were dependent on how many of the Lismore staff were on board to cover Saturdays in the Dungarvan branch. Mr C also informed the Claimant that, as a result of the merger, he had told “the girls in Dungarvan” that “they would now only be working every third Saturday.” Mr C also informed the Claimant that “if none of the seven would be covering Saturdays in Dungarvan, then we will have to employ new people for the Saturdays which would mean reducing the hours in the sub-offices”. The Claimant found this to be a threat both to her employment but also to the future of the Lismore and Cappoquin Credit Union service.

On the 30th of January 2024, a zoom meeting took place with Mr C, Ms RW, and the claimant's Employee Representatives Ms CMG and Ms AG. In that meeting the Respondent failed to relent on its requirement that the Claimant enter into the new contract. The Employee Representatives were given three options;

1. a) sign the contract;
2. b) don’t sign the contract and have no guaranteed hours, or
3. c) accept redundancy.

All of these constituted significant detrimental changes to the Claimant’s employment.

The Claimant was left with the choice of either being forced into a sham redundancy process, or to sign contractual terms which were not only uncertain to her, but detrimental and lesser to her existing terms of employment and which did not suit her family status. There was and is no genuine redundancy situation. The Claimant’s role continues to be required and in fact, Mr C confirmed that those dismissed by way purported redundancy would have their roles filled by new hires. The Lismore employees were the only ones being subjected to such amendments and threats of dismissal. The Claimant submits that, none of the employees of the Cáirde Credit Union were ever considered for redundancy or treated in a like manner or included in the process that the Claimant was involved with.

On the 19th of February 2024 the Claimant confirmed to the Respondent that she felt forced to accept a sham redundancy situation despite knowing that her role continued to exist.

On the 26th of March 2024, the Respondent indicated that the Claimant could remain in her role if she accepted a change to her roster requiring her to work on Saturdays. The Claimant confirmed the following day that she rejected this proposal and was reluctantly accepting the sham redundancy situation. The Claimant, in the absence of any legal advice or support, believed this to be her only option.

On the 5th of April 2024, the Respondent informed the Claimant that because she was not willing to accept the unilateral change to her terms of employment on foot of the merger, she would be made redundant. The Respondent stated that if she accepted this redundancy willingly, she would be offered an enhanced redundancy package. However, if she did not accept it, she would only receive statutory redundancy. The Claimant’s role was not redundant and even if it was, this is not a valid redundancy process.

On the 23rd of April 2024, the Claimant was informed that her contractual notice period would commence on the 1st of May 2024. Given the Claimant’s commencement date of the 3rd December 1996, (28 years of service), she was entitled to eight weeks’ notice. Thus, the Claimant’s employment should have ended on or about the 26th June 2024. This date came and went, with the Respondent insisting that the Claimant work past her statutory exit date due to “business needs”. It is bizarre that the Respondent continues to maintain that a redundancy situation exists, despite their being a “business need” for the Claimant’s role and despite the Respondent’s explicit confirmation that on the cessation of her employment, the Claimant would be replaced.

This left the Claimant without any certainty or security of employment and in dispute with her employer. The Claimant has no doubt that the Respondent was trying to force her to resign without a redundancy payment.

The Claimant’s representative wrote to the Respondent on the 1st of July 2024 seeking clarification as to a proposed an exit date. The Respondent failed or refused to reply.

On the 30th of August 2024, the Respondent wrote directly to the Claimant (despite being aware of the Claimant’s legal representation), explicitly informing her that the change of her contractual terms was “harmonising employment contracts”. It is submitted that this is an explicit acknowledgement of and justification by the Respondent for the changes to the Claimant’s contractual rights. This letter also clearly and unambiguously states that if the Claimant does not agree to accept the new terms she will be placed at risk of redundancy.

In the final paragraphs of that letter the Respondent explicitly accepts that a genuine redundancy situation does not exist, confirming that if the Claimant did accept the offered redundancy package, or stay and agree to amended terms and conditions, the Respondent; “… will be left with no alternative but to make your role redundant and you will receive statutory pay only.”

The Claimant remains in limbo as to the status of her employment.

Throughout that period and since then, the Claimant found herself excluded and isolated for having stood up to her new employer.

On the 18th December 2024, the Claimant attended the Company AGM wherein it was asserted by the Respondent that there were to be “voluntary redundancies”. When pressed about these redundancies and the cost of same, the Respondent conceded that they had not been correctly recorded. It was the Claimant’s view that the Respondent was trying to hide these dismissals.

The Complaints were lodged with the WRC on the 16th October 2024 and as such, the cognisable period is 17th April 2024 to 16th October 2024.

On the 23rd of April 2024, the Claimant was informed that her contractual notice period would commence on the 1st of May 2024 thus dismissing her from her employment because she objected to changes to her terms of employment as set out above.

The primary legislation governing this complaint is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (IR SI 131/2003). According to Regulation 5, the transfer of an undertaking, business, or part thereof shall not constitute grounds for dismissal by the transferor or the transferee. Dismissals for economic, technical, or organizational reasons that entail changes in the workforce are not prohibited. Furthermore, if a transfer results in a substantial change in working conditions to the detriment of the employee, the employer is considered responsible for the termination of the contract of employment. The Regulations state: "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." Regulation 4(2) of the 2003 Regulations further states: "Following a transfer, the transferee should 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 payment.”

The Claimant’s submits that;

1. She worked specific set hours not to include Saturdays;
2. She worked in Lismore, Co. Waterford;
3. She is the single mother and primary carer of an adult daughter with special needs;
4. The Claimant’s hours were subject to proposed amendment;
5. The Claimant’s place of work was subject to proposed amendment;
6. On the 26th March 2024 following some consultation, the Transferee proposed that the Claimant (and her co-workers) should submit to a change to their contractual entitlements as follows; “the credit union will not require you to accept the proposed amendments to the terms and conditions of your existing contract IE you will remain on your existing contract with the only addition to your contract that you will work every second Saturday as evidenced by your employee representatives”.
7. The Claimant was explicitly informed by letter dated 26th March 2024 that “if you decide not to accept this proposal, the credit union will serve notice on you that your role is redundant and you will be paid a statutory redundancy payment plus a discretionary payment of one week's pay per year of service”.
8. On the 30th August 2024 the Respondent wrote to the Claimant and explicitly acknowledged that; “I refer to previous correspondence concerning our efforts, post-merger, to harmonize employment contracts”. This letter continued; “Cáirde Credit Union has an operational requirement for you to work on a Monday to Saturday rota which will entail you being placed on a roster to work every third Saturday, or pro rata depending on your existing hours of work, in any of Cáirde Credit Union's offices and for other ancillary amendments to your terms and conditions of employment”.
9. The Claimant and her work colleagues who transferred were the only members of the staff group who were made redundant. To the best of the Claimant’s knowledge no staff member who was employed by the Dungarvan (Cáirde Credit Union) prior to the transfer were considered for, consulted with or put at risk of redundancy or ultimately made redundant. This was confirmed by the Respondent’s response to the Claimant’s Data Subject Access request wherein nothing was disclosed to the Claimant relating to a labour matrix or otherwise.

Given the Claimant’s family status a change in job location and work hours due to restructuring is a substantial change in working conditions, and is thus inconsistent with the regulations as it is clearly to the detriment of the employee.

Summary of Respondent’s Case:

The Respondent provided written submissions and evidence was given on affirmation by the CEO of the Respondent.

It is submitted that the Respondent has fully complied with its obligations under the TUPE Regulations. The Claimant’s terms and conditions outlined in her contract of employment dated 19 August 2016 (the “Contract”) transferred from the transferor to the Respondent. The Respondent has not varied the Claimant’s terms and conditions in circumstances where she has not been required to work occasionally on Saturdays in the Dungarvan branch on a rostered basis.

The Claimant’s Contract contains two variation clauses at clause 7 and clause 33, as follows:

“Place of Work

You will normally be required to work at Main Street Lismore, but you may be required from time to time to work at other locations. You will be given as much notice of any change to place of work as is reasonably practicable.”

“Changes to Terms of Employment.

The Board reserves the right to make reasonable changes to any of your terms and conditions of employment set out in this contract, the job description attached, and should this occur, you will be notified in advance in writing, of the nature and date of change”

The above contractual terms were applicable to the Claimant prior to the transfer of undertaking which occurred on 13 January 2023 (the “Merger”) and remained applicable post-transfer where they transferred pursuant to the TUPE Regulations.

It is submitted that the relevant provision of the TUPE Regulations (outlined above) does not prohibit the Respondent from relying on an express contractual right which existed prior to the Merger to seek to engage with the Claimant to vary her terms and conditions with a view to securing her consent. In this regard, the Respondent has consulted with the claimant in or around November 2023 and provided clear justifications for the proposed change. However, where the Claimant refused to agree to vary her terms, no such change was unilaterally imposed on her.

EUROPEAN CASE LAW

In the leading case Foreningen af Arbeidsledere i Danmark v Daddy’s Dance Hall A/S (C-324/86), Irma Catering (the transferor) had a non-transferable lease on restaurants and bars owned by Palads Teatret. Mr Kim Tellerup was employed as a manager by Irma Catering. Upon a new lease being concluded between Palads Teatret and Daddy's Dance Hall (the transferee), Daddy's Dance Hall immediately re-employed the staff of the former lessee, including Mr Tellerup. This amounted to a transfer of undertaking. However, with Daddy's Dance Hall, Mr Tellerup's contract differed from his previous one. His remuneration was in the form of a fixed wage rather than commission and, at his request, a three-month trial period was included during which either party could give 14 days' notice of the termination of the contract. Mr Tellerup was dismissed with 14 days’ notice but then began proceedings querying the length of notice to which he was entitled. The European Court of Justice (“ECJ”) had to consider whether a worker may waive rights conferred upon him by Council Directive 77/187/EEC (the “Directive”).

The ECJ held that variation of an employment contract is ineffective if the transfer itself is the reason for the variation, even where the variation is consensual and the less favourable terms are offset by other benefits so that the contract as a whole is no less favourable.

However, the ECJ acknowledged the following observation which was submitted by the United Kingdom in its decision: “The United Kingdom states, however, that the employee should be able to [waive rights conferred upon him by the Directive] if that possibility existed with regard to the transferor. The transferee, it says, stands in the shoes of the transferor: an employer may therefore agree on an amendment to his contract of employment with the transferee within the limits which would have been applicable vis-à-vis the transferor.” Importantly, the ECJ stated that “This argument must be upheld”.

The ECJ further held that “in so far as national law allows the employment relationship to be altered in a manner unfavourable to employees in situations other than the transfer of an undertaking, in particular as regards their protection against dismissal, such an alternative is not precluded merely because the undertaking has been transferred in the meantime and the agreement has therefore been made with the new employer”.

In light of the above, where changes are permitted by the Claimant’s existing Contract, it is submitted that the Respondent merely sought to exercise contractual rights it inherited when it ‘stood in the shoes’ of the transferor. This is not the same as asking the Claimant to waive her rights under the Directive. The Claimant has at no stage been required to waive rights conferred on her by the Directive or the TUPE Regulations. The Respondent simply sought to engage with the Claimant, almost one year after the Merger, to agree an amendment of her terms and conditions on the basis that she would work in the Dungarvan office one in every six Saturdays. It is noted that the Respondent’s Dungarvan office is only 24.6 km from the Claimant’s place of work in its Lismore Office (23 minutes by car) and she would be given time off in lieu of Saturday working and her expenses in travelling to the Dungarvan office of the Respondent would be re-imbursed. The Respondent submits that this proposed change to the Claimant’s terms and conditions was “within the limits which would have been applicable vis-à-vis the transferor”.

The Claimant rejected this proposed change and accepted a voluntary redundancy (which she also subsequently rejected). To date, the Respondent has not unilaterally amended the Claimant’s terms and conditions.

In Noel Farrell v Bidvest Noon Limited (ADJ-00026709) the transferee relied on a variation clause in a contract of employment, arguing that the clause was part of the terms and conditions that applied at the time of the transfer. The variation clause required the transferee to consult on such changes and an undertaking that the employee would “not be assigned duties, which [he] cannot reasonably perform”. In this case, the transferee sought to change the complainant’s role from a car park attendant (pre-transfer) to a security guard (post transfer).

The Workplace Relations Commission (“WRC”) held that this was a significant change to the employee’s role. The Adjudication Officer noted in particular that the duties were “significantly altered…to the extent…as to be completely different roles”. The new duties included reception duties, patrol duties, monitoring CCTV and lock up duties. The complainant required a PSA licence / qualification which he did not possess. The Adjudication Officer determined that “the variation clause in the Complainant contract did not provide the Respondent with the scope to expand the Complainant’s role to such an extent as to fundamentally alter the terms and conditions of employment”. The transferee “did not ensure that the Complainant’s terms and conditions transferred from his previous employer”.

It is submitted that the proposed change to the Claimant’s contract was not substantial in circumstances where her role remained the same other than she would be required to work occasionally on a Saturday in the Dungarvan branch. Notwithstanding the fact that the Respondent’s position is that this proposed change was not substantial, the Respondent did not seek to unilaterally change the Claimant’s terms and conditions at the time of the Merger in January 2023 or thereafter. The Respondent only sought to change her terms and conditions one year later and did not proceed to amend her terms where her consent was not forthcoming.

In Woodies DIY Ltd v A Group of Workers (TUD178), the Labour Court held that, on the facts of the case, a change in employees' date of pay, made almost ten years after a transfer was not by reason of the transfer, and therefore was valid. The Labour Court considered complaints by 15 employees who had originally been employed by Atlantic Home Care prior to Woodies' acquisition of that business in 2005. That was a transfer caught by the TUPE Regulations. In September 2014, Woodies introduced a change in the frequency of payment of wages. This was a transfer from weekly payments to a monthly payroll system. Some 250 former Atlantic Home Care employees were thereby moved onto the same monthly payroll system as the rest of Woodies' workforce. The employees had been supported in the transition phase of this changeover with financial advice and support and salary advancements. But the employees complained that the change was in breach of regulation 4 of the TUPE Regulations and sought compensation. The Labour Court rejected their claims. The employees had failed to establish “any logical connection between the transfer that occurred in 2005 and the change to the frequency of payroll payments effected by the Respondent in 2014”.

In the Woodies case, the Labour Court held that despite the fact a unilateral change of employees’ terms and conditions was implemented post-transfer, this did not amount to a breach of the TUPE Regulations. In contrast, as outlined above, it is submitted that the Claimant’s terms and conditions remain as they were pre-Merger insofar as there was no unilateral changes to her terms and conditions i.e. she has not been required to work Saturdays in the Dungarvan branch but instead the Respondent engaged with the Claimant to consult with her for the purpose of seeking her agreement to a change in her terms and conditions.

Summary

In the claim before the WRC, the Respondent did not unilaterally change or indeed seek to harmonise the Claimant’s terms and conditions in breach of the TUPE Regulations. Instead, it sought to change to the Claimant’s terms and conditions in accordance with the variation clause in her employment contract to assist it coping with an unanticipated operational uptick of busyness in its Dungarvan office because customers who previously transacted their business in their local Credit Unions could now also transact their business on a Saturday in the Dungarvan Credit Union branch of the Respondent.

The Respondent submits that while the TUPE Regulations protect terms and conditions of employees at the point of a transfer of an undertaking, an employer can amend such terms and conditions following the transfer for operational reasons, not unilaterally, but following consultation with a view to reaching the agreement of the employees. If the TUPE Regulations prevented a transferee from changing terms and condition of employees who transferred to it under the TUPE Regulations for operational reasons, it could have the consequence of businesses becoming unviable and a reluctance of businesses to acquire economic undertakings and job losses which is not consistent with the spirit of the TUPE Regulations.

In the claim before the WRC, the Respondent reasonably sought to rely on variation clauses in the Claimant’s Contract. However, when the Claimant objected to the proposed change, the Respondent did not proceed to unilaterally change the Claimant’s Contract. As such, there was no breach of the TUPE Regulations and the Respondent requests the WRC to uphold its defence to this claim.

Findings and Conclusions:

CA-00066735-001           European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The complaint here is that the Transferor did not ensure the terms and conditions of the Complainant’s employment were transferred to the Transferee.  Specifically, the Complainant contends that her conditions of employment involved working 3 days a week Monday, Thursday and Friday and the Respondent proposed to unilaterally change these to include flexibility for working on Saturday and also possibly working in different locations depending on need. 

In this instant case, over the years from 1996, the Complainant held a number of contracts of employment which contained clauses regarding her place of employment and hours of work.

The contract of employment in 2002 described her as Office Assistant Lismore & Cappoquin Credit Union.  Hours of work were 4 days.  It included the stipulation that these conditions may be altered but any change would be effected in consultation with the employee.

The contract of employment of 19th October 2016 confirmed her reporting centre as Lismore, her hours of work Monday to Friday and overtime as required.    These conditions may be altered but any change will be effected in consultation with the employee.

Significantly, in relation to this instant case, the contract of employment of 4th October 2021 stated:

“Your normal working week is 21 hours working Monday, Thursday and Friday but you may be required to work overtime from time to time to meet the needs of the position... The Credit Union reserves the right to alter the working hours but any such change will be effected in consultation with you”.  

The contract of employment dated 1st April 2024 which is the subject of the dispute, states that the complainant’s normal place of work would be Lismore & Cappoquin and that she may be required to work in any of the offices owned or operated by Cairde Credit Union Ltd or at her normal place of residence on a working from home basis, by agreement.

The hours of work were described as Monday to Friday 9.15am – 5.15pm and Saturday 9.15am – 4.15pm.

On the 30th August 2024 the Respondent wrote to the Claimant:

“I refer to previous correspondence concerning our efforts, post-merger, to harmonize employment contracts”. This letter continued; “Cáirde Credit Union has an operational requirement for you to work on a Monday to Saturday rota which will entail you being placed on a roster to work every third Saturday, or pro rata depending on your existing hours of work, in any of Cáirde Credit Union's offices and for other ancillary amendments to your terms and conditions of employment”. 

S.I. No. 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides:

4. (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.

I note the case law supplied by the Respondent in this case.

I note the European case law cited, and I accept the point regarding the Transferee “standing in the shoes of the Transferor”.  I note there is a certain flexibility in the Complainant’s contract in this instant case.  However, it is specifically noted in each contract that any alterations in the contract will be effect in consultation with the employee.  In this instant case, the Complainant has clearly stated her complete opposition to proposed changes.  

I note the Respondent cited cases such as Woodies DIY Ltd v A Group of Workers (TUD178), where the Labour Court held that a unilateral change of employees’ terms and conditions did not amount to a breach of the TUPE Regulations. However, I find that the circumstances in that case (where the employer sought to change the frequency of payment of wages from weekly to monthly 10 years after the transfer) are not on all fours with this case. 

In this instant case, I note the Respondent submitted that the Claimant’s terms and conditions remain as they were pre-Merger insofar as there was no unilateral changes to her terms and conditions i.e. she has not been required to work Saturdays in the Dungarvan branch but instead the Respondent engaged with the Claimant to consult with her for the purpose of seeking her agreement to a change in her terms and conditions.  I have some sympathy with the Respondent in this case, and the long running efforts to resolve the issues.

However, it is clear from the letter dated 30th August 2024 that the Respondent asserted that “Cáirde Credit Union has an operationalrequirement for youto work on a Monday to Saturday rota which will entail you being placed on a roster to work every third Saturday, or pro rata depending on your existing hours of work, in any of Cáirde Credit Union's offices and for other ancillary amendments to your terms and conditions of employment”.

Given that the normal terms and conditions of employment held by the Complainant since 1996 did not entail working on Saturdays, I find that this is a fundamental change in the Complainant’s conditions of employment which is prohibited by virtue of Regulation 4 (1) of the Regulations.  I find the complaint to be well founded.

CA-00066735-002           European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The complaint here is “my current employer did not observe terms and conditions transferred by my previous employer”.

For the reasons and findings stated above under CA-00066735-001, I find the complaint to be well founded.

CA-00066735-003           European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The complaint here is that the Complainant was being dismissed by reason of a sham redundancy.

While there was correspondence between the parties regarding possible redundancy, voluntary, enhanced or statutory, no dismissal actually occurred.  I do not find the complaint to be well founded.

CA-00066735-004           Employment Equality Act 1998

This complaint was withdrawn at hearing.

Decision:

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

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) requires that I make a decision in accordance with the redress provisions of that Regulation. 

CA-00066735-001           European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Based on the findings and reasons outlined, I have decided that the complaint is well founded.

In accordance with Regulation 10 (5) (a), I declare that the Complaint is well founded.

In accordance with Regulation 10 (5) (b), I require the Respondent to comply with Regulation 4 and          In accordance with Regulation 10 (5) (c), I require the Respondent to pay to the Complainant compensation of €10,000 which I consider to be just and equitable in the circumstances.

CA-00066735-002           European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Based on the findings and reasons outlined, I have decided that the complaint is well founded.

I make no further directions or award of compensation.

CA-00066735-003           European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Based on the findings and reasons outlined, I have decided that the complaint is not well founded.

CA-00066735-004           Employment Equality Act 1998

This complaint was withdrawn at the hearing.

Dated:   1st May 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: