TUD2612

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045756 (CA-00054368-004)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’) on 20 February 2025. A Labour Court hearing took place on 15 January 2026. 

The following is the Decision of the Court.

DECISION:

1. Background to the Appeal

This is an appeal by Ms Jelena Jevsejeva (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00045756/CA-00054368-004, dated 11 February 2025) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’). Notice of Appeal was received in the Court on 20 February 2025. The Court heard the appeal in Dublin on 15 January 2026.

1. Factual Background

The Complainant was employed by the Respondent as a part-time cleaner at the Central Mental Hospital site in Dundrum until the Respondent lost that contract to a competitor. The loss of the contract gave rise to a transfer of undertakings from the Respondent to Derrycourt Cleaning Specialists (‘Derrycourt’) on 14 November 2022. The transfer date coincided with a relocation of the Central Mental Hospital from Dundrum to Portrane, Co. Dublin. The Complainant did not wish to avail of her right to transfer on the transfer date and engaged with the Respondent in relation to potential options to remain working with it as the journey times from the Complainant’s home to Portrane did not make her part-time hours economically viable. The Respondent was unable to identity a suitable alternative role for the Complainant. The Complainant ultimately commenced employment with the transferee in January 2023.

1. The Complaint

The Complainant alleges that she was dismissed from her employment with the Respondent in breach of the Regulations. The Adjudication Officer held that the complaint was not well-founded and held that the Complainant had delayed her transfer from the Respondent to the transferee as she wished to explore potential alternative roles with the Respondent but no such role became available, despite the Respondent’s best endeavours to find one.

1. The Complainant’s Evidence

The Complainant told the Court that she had attended a meeting with the Respondent’s representatives on 20 October 2022 at which she and her colleagues were given information about the impending transfer of their employment to Derrycourt and the relocation of their place of work to Portrane. The Complainant’s evidence was that the Respondent did not explain her rights under the Regulations to her and provided incorrect information to the meeting. She further complained that the Respondent had not provided an interpreter at the meeting. She said she has reasonable conversational English but is unable to comprehend technical or contractual terminology in English.

It was put to the Complainant in cross-examination that she fully understood the implications of the transfer that occurred on 14 November 2022 and that she had initially decided not to avail herself of her right to transfer to Derrycourt, choosing instead to explore potential alternative roles with the Respondent. Copies of an email exchange that the Complainant had with a regional manager from Derrycourt through the course of December 2022 were opened to the Court. In an email dated 12 December 2022, Mr Stephen Conway of Derrycourt wrote as follows: to the Complainant: “I note that when we originally discussed the TUPE process, we had offered you a role in NFMHS at Portrane for Derrycourt with the same Terms and Conditions, but you stated you did not want to transfer to NFMHS with Derrycourt and instead wished to remain with Emerald.” The Complainant herself stated in an email dated 21 December 2022 to Mr Conway: “I knew about the TUPE from Emerald on November 14th. I declined to move to Portrane as this job takes an hour and a half to travel from my place of residence.”

The Complainant was also cross-examined in relation to a letter from Derrycourt which the Respondent submits had been distributed at the consultation meeting on 20 October 2022. A copy of the letter, it was pointed out to the Complainant, was included in her own bundle of papers submitted to the Court. The Complainant said that she had only received the letter by email on 8 November 2022 even if some of her colleagues received it physically at the meeting. The letter confirmed that the Complainant was entitled to transfer her employment to Derrycourt with full continuity of service and on her existing terms and conditions with the exception of any pension arrangements she had with the Respondent. Derrycourt also advised in that letter that it had received each transferring employee’s full terms and conditions of employment and any other contractual details.

1. Evidence of Ms Katherine Kelly

The witness is the Director of Cleaning with the Respondent. She told the Court that she had overseen the transfer of staff from Dundrum to Portrane, a process she said that had been in train from February 2021 when the Respondent learned that it had been unsuccessful in re-tendering for the contract with the CMH. The witness said that the transfer was delayed until late 2022 because of Covid.

The witness then gave evidence in relation to a meeting she had held with cleaning staff in Dundrum on 20 October 2022. She said that she had been accompanied at the meeting by Ms Carol Ann O’Driscoll, Area Manager. The witness said that she informed the staff that the transfer would go ahead on 14 November 2022 and she explained the implications of the Regulations for them. She also told the employees, she said, that all their HR details had been passed to Derrycourt. The witness told the Court that the Complainant at no stage indicated that she did not understand what was being communicated to her and her colleagues at the meeting and in any event all staff had been aware of the imminent move of the CMH since 2021.

The witness referred in her evidence to a letter from Mr Patrick Bergin of the HSE to all staff colleagues in the CMH dated 3 October 2022 outlining the timeline of the planned move of the CMH from Dundrum to Portrane on 13 November 2022 in some detail. The witness said that she was aware that this letter had been shared by the Respondent’s site manager with the Respondent’s employees.

According to the witness, the Complainant approached her at the meeting to ask if she could remain working for the Respondent. In response, the witness said she spoke to Ms O’Driscoll to check if any suitable positions were available for the Complainant. The first potential role identified she said was in Coolmine.

In concluding her direct evidence, the witness said she had fulfilled her information and consultation obligations under the Regulations at the meeting on 20 October 2022: she told staff that they would transfer to Derrycourt on 14 November 2022 and were entitled to continuity of employment on the same terms and conditions. Finally, the witness said that she was asked very few questions by staff other that the Complainant’s enquiry about the possibility of continuing to work with the Respondent.

Under cross-examination, the witness repeated that she had handed out a copy of the Derrycourt letter at the meeting on 20 October 2022 and had subsequently emailed it to the Complainant at the Complainant’s request. The witness was asked by the Complainant why she continued to received payslips from the Respondent (recording zero earnings) for a number of weeks after the date of the transfer. The witness said that the Respondent had just employed a new payroll administrator who had failed to remove the Complainant from the Respondent's system.

1. Discussion and Decision

The Court found Ms Kelly to be a credible, coherent and convincing witness and accepts her account of events surrounding the transfer of undertakings that occurred between the Respondent and Derrycourt in November 2022. In particular, the Court is satisfied that the Complainant was fully informed of her entitlement to transfer her employment from the Respondent to Derrycourt, with continuity of service and preservation of her terms and conditions but chose not to do so because of the increased travel time that would result. That was her prerogative. By operation of law, however, her employment with the Respondent ceased on 14 November 2022 notwithstanding the good faith efforts that the Respondent made to try and obtain an alternative role for her. The actions of the Respondent in this regard do not nullify the effect of the Regulations: the Complainant was no longer an employee of the Respondent from the moment the transfer took effect. This cannot be construed as a dismissal of the Complainant by the Respondent.

For the foregoing reasons, the appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AM	______________________
27 January 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.