Complainant

Respondent

Parties

Martina  Griffin

The Mucky Duck Limited

Representatives

Self-represented

No Attendance

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-00076382-002

14/10/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00077122-001

14/10/2025

The complainant submitted two complaints, that the respondent did not consult in relation to the transfer of the business and that she did not receive her annual leave entitlement.

Summary of Ms. Griffin’s Evidence

The complainant stated that she worked as a Kitchen Porter for the respondent from 2nd October 2023. She earned €322.40 gross per week. She gave testimony that the business transferred on 27th April 2025 although she had not been consulted in advance of the transfer. She said at the time of the transfer she had accumulated three weeks annual leave which she was not paid for at the time of the transfer or subsequently.

She was asked to respond to communications submitted to the WRC by the respondent. She replied that she had not received her holiday pay nor had she received the letter from the respondent of 13th May 2025.

There was no attendance on behalf of the respondent company. I am satisfied that the respondent company was on notice of the hearing arrangements.

The WRC received a letter from a Director of the company on 27th March 2026 as follows-

‘We write to confirm that all holiday pay and entitlements due to every employee of The Mucky Duck Limited on the 27th April 2025 was paid.

……. was acting as the accountant for the company at that time. Please find attached copy of the correspondence issued by him on behalf of the company to Martina Griffin.

…… confirmed that the financial transaction of all employee entitlements was completed to Darren Feehan/Mark Byrne.’

The attached correspondence to Ms Griffin referred to above was dated 13th May 2025 and the relevant extracts are as follows-

‘We do apologise for being late in notifying you, but negotiations and legal discussions continued up until the last minutes.

This letter confirms that any and all of your individual payments, holiday pay, rights, and entitlements due to you are protected by law.

The new operator is legally responsible to ensure you receive all of your entitlements under TUPE legislation.

Our accountant has confirmed that it is industry custom and practice that all holiday pay entitlements are to be paid to the employees to the date that they worked with the previous company.

We have made arrangements with Mark Byrne to pay to him all your accrued holiday pay to April 27th 2025, the date of transfer.

Mark Byrne have confirmed that he will pay your holiday pay, in due course, when you choose to require this.

We wish you and all every success with Darren & Mark.’

CA-00076382-002- Transfer of Undertakings Complaint

The Law

Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) provides-

(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 reason 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.

(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.

Finding

The complainant gave uncontested evidence that she was not consulted or informed prior to the transfer of the business, in accordance with the regulations. The respondent submitted correspondence to the WRC attaching a letter allegedly sent to the complainant concerning the transfer. The complainant gave testimony that she did not receive this letter. Notwithstanding this conflict in evidence, the letter itself indicates that the appropriate information and consultation did not take place- ‘We do apologise for being late in notifying you, but negotiations and legal discussions continued up until the last minutes.

For the reasons outlined, I declare that the complaint is well founded.

As per regulation 10 (c), I am required to consider what compensation is just and equitable in the circumstances in awarding compensation not exceeding 4 weeks’ pay.

As I consider this to be a serious breach of the regulations, I require the respondent to pay compensation of €1,289.60 to the complainant.

CA-0007712-001- Organisation of Working Time Act Complaint

The Law

Section 19 of the Act provides for the paid annual leave entitlement of employees.

Section 20(1) (c) provides for leave to be granted within the leave year to which it relates or with the consent of the employee within 6-months thereafter.

Section 2 provides that the leave year commences on 1st April and ends on 31st March.

Finding

The complainant gave uncontested testimony that she was due 3-weeks’ annual leave prior to the business being transferred. In accordance with the Act, as the end of the leave year ends 31st March, the complainant’s annual leave was due to be taken in the leave year 1st April 2024 to 31st March 2025, unless the employee consented for it to be taken within 6-months thereafter. As no evidence was presented that the employee consented, in effect, the employee was not granted her statutory annual leave prior to the business transferring on 27th April 2025.

In SIPTU v. Grosvenor Cleaning Services Ltd 0440, the Labour Court held that it was unconscionable to allow the respondent to avoid responsibility where the leave year had expired.

For the reasons outlined, I decide that the respondent has breached the Organisation of Working Time Act.

As the Act derives from a European Directive, any compensation award must provide for an effective deterrent so as to dissuade future infractions, along with the effects the breach has had on the complainant (CC-14/83 Von Colson [1984] ECR1891). The complainant was not granted her annual leave or payment in lieu by her employer for the leave year ending on 31st March 2025. This remained unpaid up to 27th April 2025 when the business transferred to another employer. In order to pursue her statutory entitlement, the complainant has had to make a complaint and attend two hearings at the WRC.

I decide the complaint is well founded. The respondent should pay compensation of €1,500.00 to the complainant.

CA-00076382-002- Transfer of Undertakings Complaint

I declare that the complaint is well founded. I require the respondent to pay compensation of €1,289.60 to the complainant. For clarity, this is a compensation award for a breach of regulations and is not related to earnings.

CA-00077122-001- Organisation of Working Time Act Complaint

I decide the complaint is well founded. The respondent should pay compensation of €1,500.00 to the complainant. For clarity, this is a compensation award for a breach of statute and is not related to earnings.

Transfer of Undertakings, No application of Annual Leave