TUD265

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00049644 (CA-00060406-002)

BACKGROUND:

The Employee 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 2 May 2025. A Labour Court hearing took place on 18 June 2026. 

The following is the Decision of the Court.

DECISION:

1. This is an appeal by Ms Lina Leliugiene against a Decision of an Adjudication Officer (ADJ-00049644/CA-00060406-002) made under the European Communities (Protection of Employee on Transfer of Undertakings) Regulations 2003 (the Regulations) in a complaint against Emerald Contract Cleaners (Ireland) Limited. The Adjudication Officer’s decision is dated 7 April 2025 in which she found that she lacked jurisdiction because the complaint “was submitted outside the time limit set out at clause 10(6)” of the Regulations.
2. For ease, the parties are referred to in the same way as at first instance, so Ms Leliugiene is referred to as “the Complainant” and Emerald Contract Cleaners (Ireland) Hotel Limited as “the Respondent”.
3. A hearing of the Court was held on 18 June 2026 in Dublin. With the consent of the Court, under Rule 46(d) of the Labour Court Rules 2024, the Complainant was represented by Mr Gediminas Gvazdauskas at the hearing. The Respondent was represented by Mr Gareth Kyne of Management Support Services (Ireland) Ltd. The Court heard submissions from the representatives of both parties.
4. At the hearing, the Respondent made an application to have documents submitted to the Court, which included documents provided by the Complainant’s then solicitors in respect of the presentation of the Complainant’s complaint to the Workplace Relations Commission (WRC). The Respondent confirmed that the documents had been provided to the Complainant in advance of the hearing and the Complainant did not object to the submission of the documents. As the documents provided useful information which had not been included in the submissions of either party the Court accepted the documents and included same in its consideration of the within appeal.

Summary of the Complainant’s Submission

5. The Complainant’s position was that her former solicitors had submitted her complaint to the WRC within the statutory time limit. The Complainant says there was evidence of “an attempted or believed WRC online submission in May 2023 and follow up contact shortly afterwards” (by way of telephone call on 18 May 2023). The Complainant provided a letter from her former solicitors, dated 5 May 2026, with a view to supporting that contention albeit the Complainant wished only for the part of the letter referring to the date of submission of the complaint to the WRC to be considered by the Court.
6. The Complainant’s submission notes that the Complainant did not control the WRC online portal, the WRC CRM system, the creation of a complaint reference, the WRC post-room or the WRC internal telephone/customer-service records. She relied on professional representatives. She submits that it would be wrong to treat her personally as having failed to act in time where the disputed issue concerns filing, confirmation and administrative recording.
7. The Complainant appears to ask the Court to seek, from the WRC, records of the Complainant’s complaint before deciding the time limit issue on the basis that a missing or incomplete WRC record does not automatically prove that the Complainant failed to act. The Court was urged not to treat an administrative absence as conclusive proof where the administrative record itself is the disputed issue.
8. In respect of the substantive matter the Complainant alleged that the Respondent had breached the Regulations in terms of inadequate and misleading communication to employees, failing to properly inform employees of critical transfer details and administrative discrepancies relating to transfer documentation. The Complainant submitted that the Respondent fundamentally failed in its duty to provide clear, timely, and documented communication regarding the transfer to affected employees including the Complainant, and specifically that the information and communication process was unclear, incomplete and unreliable in respect of the Complainant’s hours, terms and working arrangements.

Summary of the Respondent’s Submission

9. The Respondent submitted that the original complaint was not submitted to the WRC within the six-month time limit set by the Regulations and, further, it was not submitted within the 12-month time limit that may be applied in “exceptional circumstances”. The Respondent set out that the complaint was received by the WRC on 5 December 2023, more than twelve months after the date the Complainant’s employment transferred to Derrycourt Cleaning Specialists Limited at midnight on 13 November 2023.
10. The Respondent noted that, at the WRC, the Complainant’s solicitors had claimed to have presented the complaints within the six-month time limit, electronically online on 4 May 2023 and by registered post sent on 17 May 2023, which latter date was noted to be outside the six-month time limit. The Respondent’s understanding was that the WRC did not receive either submission within the six-month time limit.
11. Submissions were made regarding documentation provided by the Complainant’s solicitors regarding the progress of multiple complaints from a number of complainants, including the Complainant. The Respondent identified inconsistencies in the documentation, which included An Post tracking number records and correspondence from the Complainant’s solicitors, such that it submitted that there was no evidence that the Complainant’s complaints had been referred to the WRC until 5 December 2023. The Respondent submitted that the investigation conducted by the WRC “shows, indisputably, that no complaint was properly submitted on behalf of the Appellant until December 2023”.
12. The Respondent submitted that the Court did not have jurisdiction to hear the case as the complaint was submitted outside the statutory time limits and was therefore statute barred. The Respondent asked for the matter to be dealt with as a preliminary issue in respect of time limits.
13. In respect of the substantive claim the Respondent submitted that it fulfilled the obligations placed on it by the Regulations and, while engaged in the transfer process, did nothing in contravention of those Regulations. It was the Respondent’s position that while no breaches on its part occurred in relation to its obligations under the Regulations, if any breach occurred subsequent to 13 November 2022, the liability for any such breach does not rest with the Respondent.

Relevant Law

14. Section 41 of the Workplace Relations Act 2015 (the 2015 Act) provides that:

                                   “(1) An employee (in this Act referred to as a “complainant” or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in                                                Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the dispute for adjudication by an adjudication officer”

15. Part 2 of Schedule 5 to the 2015 Act, at 1., includes the Regulations.
16. Section 41(6) of the 2015 Act provides that:

                                   “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 6 months beginning on the date of the                                                      contravention to which the complaint relates.”

17. Subsection 8 provides that:

                                   “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.”

18. Rule 54 of the Labour Court Rules 2024 provides that: -

                                   “The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

19. The Court decided, with the agreement of the parties, that it would hear and decide the preliminary matter in relation to time limits in the first instance.

Deliberations

20. There was no dispute between the parties that the transfer of undertakings took place at midnight on 13 November 2022. The Respondent was the transferor. The Complainant’s claim was that the Respondent had not ensured that her terms and conditions transferred to the transferee. The latest date of contravention of the Regulations against the Respondent was therefore the date of transfer. This means that the Complainant had, pursuant to section 41(6) of the 2015 Act, until 12 May 2023 in which to refer her complaint to the WRC (or 13 May 2023 if the transfer is deemed to have taken effect immediately after midnight on 13 November on 14 November 2022). If reasonable cause could be shown that time could be extended until 12 November 2023 (or 13 November 2023), pursuant to section 41(8) of the 2015 Act.
21. The decision of the Adjudication Officer reflected 5 December 2023 as the date of receipt of the Complainant’s complaint.
22. The Complainant’s position is that her former solicitors submitted her complaint within the statutory time limit, noting that this was set out in the WRC decision as being submitted by email on 4 May 2023 and by registered post on 17 May 2023. No evidence was presented to support this proposition. To the contrary, in the papers submitted by the Respondent, a letter from the Complainant’s former solicitors to the WRC, dated 1 December 2023, referenced the complaint having been submitted online “in August 2023”. In a letter, dated 22 December 2023, the solicitors confirmed that “the said application was submitted on 2nd of August 2023” and referenced the application having been “resent” “as a reminder on the 30th November 2023”. The email of 4 May 2023 purporting to evidence the complaint having been submitted on that date is actually an email from one email address in the solicitor’s firm to another stating “ATTACHED WRC FORM SUBMITTED TODAY” and not a communication with the WRC. The An Post tracking numbers provided do not reference the Complainant and in any event reference deliveries on 17 May 2023, outside the time limit set in section 41(6) of the 2015 Act.
23. Correspondence provided by the Complainant in terms of a letter from her former solicitors to her, dated 5 May 2026, in respect of her Labour Court appeal, referred to the date of submission of her complaint to the WRC as “4th May 2026” and refers to “the majority of claims relate to that of the Working Time Act” where the complaint the subject of the within appeal referred to a single complaint under the Regulations. It does not provide any clarity to the Court in respect of any purported submissions in May 2023.
24. The WRC confirmed receipt of the complaint by registered post and dated stamped on 5 December 2023. This date was reflected in the decision of the Adjudication Officer. While the Complainant may have believed or understood that her complaint was presented to the WRC within the statutory time limit there was no evidence provided to the Court which supported that belief. It is not a matter for the Court to undertake an independent investigation of the WRC’s records in respect of the processing of the complaint as suggested by the Complainant. Neither is it a case of the Court holding the Complainant responsible for failing to act. Rather it is for the Court to determine, on the basis of the evidence before it, when the complaint was presented to the WRC and whether or not it was presented in time.
25. The only documentation verifying the date of presentation of the complaint to the WRC is the confirmation by the WRC that the complaint was received by registered post on 5 December 2023, which date is then reflected in the decision of the Adjudication Officer of 7 April 2025. In the absence of any evidence from the Complainant of any earlier presentation, the Court concludes that the complaint was presented to the WRC on 5 December 2023 which is outside the maximum time limit of twelve months provided for the presentation of complaints under the Regulations.
26. The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. The Labour Court cannot assume a jurisdiction which is not conferred on it by statute and the Court does not have any discretion to vary or extend the time limits set out in relevant statutes.
27. A failure on the part of the Complainant to present her complaint on time deprives the WRC, and this Court on appeal, of jurisdiction to investigate the complaint.

Decision

28. In circumstances where the claim for redress under the Regulations was not referred to the WRC within twelve months of the date of the alleged contravention of the Regulations the Adjudication Officer, and this Court on appeal, does not have jurisdiction to investigate the complaint alleging breach of the Regulations.
29. The decision of the Adjudication Officer referred to time limits set out in “clause 10(6)” of the Regulations. The time limits in respect of complaints alleging breach of the Regulations were, prior to enactment of the 2015 Act, set out in Regulation 10(6). However, the applicable time limits are now set out in section 41 of the 2015 Act given the substitution of Regulation 10 by section 52 of the 2015 Act.
30. The decision of the Adjudication Officer is varied to substitute “it was presented outside the time limit set out in section 41 of the Workplace Relations Act 2015” for “it was submitted outside the time limit set out at clause 10(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003” in the decision bearing adjudication reference number ADJ-00049644 and complaint reference number CA-00060406-002.
31. The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
AM	______________________
14/07/2026	Deputy Chairman

NOTE

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