Complainant

Respondent

Parties

Sara  Halpin

Robert & F Warren Ltd

Representatives

Self-represented

Dermot Hynes, Hynes HRS Ltd.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00070893-002

16/04/2025

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-00070893-003

16/04/2025

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

CA-00070893-004

16/04/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent undertook to give evidence under affirmation. However only the complainant gave evidence and was cross examined.

This complaint was heard along with ADJ-00058439 and the evidence provided in relation to that complaint was heard at the same time as this complaint.

CA-00070893-002 Payment of Wages

The complainant confirmed that there was no loss of earnings in respect of her complaint.

CA-00070893-003 Transfer of Undertakings

The complainant submitted that she was never made aware that her employment had transferred from her former employer to the current employer.  She stated that she understood that this took place in 2021 but only became aware of this when in communications with the Revenue Commissioners during the twelve months prior to lodging the complaint with the WRC.

CA-00070893-004 Unfair Dismissal

The complaint submitted that she resigned from her position on 10 December 2024 giving notice up to the end of the year.  She confirmed that she held a HR role with the respondent and was aware of the grievance procedure.  She further confirmed that she did not utilise the grievance procedure as she felt that it would not be followed by the respondent.  She stated that this was because she had sought copies of her payslip numerous times previously with no satisfaction. 

She also noted that she had previously taken a complaint to the WRC but had withdrawn as she felt under pressure to do so.  She noted that the employer never made any reference to it but felt that he had not given her a reasonable pay increase due to having taken the complaint.

Under cross examination she confirmed that there were no pay or payslip issues outstanding when she concluded her employment.

CA-00070893-002 Payment of Wages

The respondent confirmed that there was no loss of earnings in respect of the complaint.

CA-00070893-003 Transfer of Undertakings

The respondent confirmed that it never made the complainant aware of the existence of a transfer of undertakings between her former employer and the present respondent.  It was confirmed that the principals of both entities were the same individuals.

CA-00070893-004 Unfair Dismissal

The respondent submitted that when it received the complainant’s resignation it tried unsuccessfully to meet with the complainant to discuss the issues that she raised around her resignation.  The complainant informed the respondent that she didn’t have any available time to meet with the respondent.  She didn’t avail of any opportunity to talk, take grievance nor other complaint at the time.

It was confirmed that the respondent had a grievance procedure in place.

CA-00070893-002 Payment of Wages

The complainant confirmed that there was no financial loss in respect of this complaint.  Therefore, this complaint is not well founded.

CA-00070893-003 Transfer of Undertakings

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) governs the taking of complaints to the WRC.  Regulsation 10(6) states that

(6)      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.

This timeframe is mirrored in Section 41(6) of the Workplace Relations Act:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Act continues:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The respondent confirmed that it never informed the complainant of the change of ownership of the business.  Accordingly, I consider that the date of the contravention to which this complaint refers falls within the period comprehended by the Act and is validly before the WRC.

Regulation Section 10(5) states as follows:

(5)      A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

(a)     declare that the complaint is or, as the case may be, is not well founded;

(b)     require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

(c)     require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i)      in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii)      in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,

in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977 ,

Regulation 8 provides that

(1)     The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)      the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

and

(d)      any measures envisaged in relation to the employees.

 (2)      The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3)      The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

 (4)      Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

 (5)      Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

 (6)      Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d)     any measures envisaged in relation to the employees.

 (7)      The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.

Having regard to the circumstances of this complaint I am satisfied that the conditions of Regulation have been contravened in that Regulation 8 has not been adhered to.  Accordingly, I find that compensation amounting to four weeks salary is just and equitable in the circumstances.  This amounts to €566.30

CA-00070893-004 Unfair Dismissal

The complainant confirmed that she did not take a grievance or other complaint to the respondent before resigning.  She confirmed that she was aware of the grievance procedure, noting that she worked in HR.  The respondent submitted that the complainant case should fail as she had not utilised the grievance procedure and referred to a number of previous court decisions.

The Courts have generally concluded that it is incumbent upon person to exhaust or at the very least substantially utilise a grievance procedure where one exists, before that person can rely on constructive unfair dismissal.  Amongst the cases that have considered the issue of exhausting internal procedures are the following cases:

Conway v Ulster Bank, UD474/1981

“substantially utilised the grievance procedure to attempt to remedy her complaints”

McCormack v Dunnes Stores, UD 1421/2008

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

Travers v MBNA Ireland Limited, UD720/2006

“the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

“in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In her evidence the complainant confirmed that she did not make a complaint nor seek to lodge a grievance before resigning.  I am not satisfied that her reasons for not making a grievance are sufficient.  Accordingly, I find that she has not established that she was left with no option other than to resign.  I find that she was not unfairly dismissed, constructively or otherwise.

CA-00070893-002 Payment of Wages

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

CA-00070893-003 Transfer of Undertakings

Having regard to the written and oral evidence provided in relation to this complaint, my decision is that the regulations have been contravened.  I require the respondent to pay the complaint compensation of €566.30

CA-00070893-004 Unfair Dismissal

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed unfairly, constructively or otherwise.

Payment of Wages – no financial loss - not well founded - Transfer of Undertakings Regulations – contravened – award of compensation – Unfair Dismissal – no recourse to internal mechanism – no unfair dismissal established.