Complainant

Respondent

Parties

Algis  Cesonis

Martin Ryan Haulage Limited

Representatives

Donncha Kiely BL instructed by  James V. Walsh & Son LLP

Eilean Hynes,  Hynes HR

Act

Complaint Reference No.

Date of Receipt

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

CA-00068822-001

24/01/2025

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-00069995-001

14/03/2025

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-00069995-003

14/03/2025

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-00069995-004

14/03/2025

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-00069995-005

14/03/2025

The Complainant in this case is a Lithuanian Lorry Driver, who through his Solicitors raised a number of workplace complaints on 24 January 2025.

The Complainant approached the case through a submitted continuity of employment across two successive employments:

23 August 2021 to 3 September 2024.

CA-00068822-001 Claim for Unfair Dismissal

CA-00068822-002 Claim for Discriminatory Dismissal (later withdrawn)

On 28 January 2025, these claims were notified to the Respondent.

On 30 January 2025, Ms. Eiléan Hynes, Human Resource Executive, responded on behalf of the Respondent company.

1 The Complainant had insufficient service to ground a claim for Unfair Dismissal.

Two documents were attached:

1 Statement of Terms dated 1 June 2024, between the complainant and respondent.

2 Copy of Respondent handbook signed by the Complainant on 13 June 2024.

On 10 February 2025, the Complainant elected to proceed with his claim under Unfair Dismissal Act 1977, thus withdrawing his claim under Employment Equality Act, 1998.

On 11 March 2025, the WRC informed the parties that the case would proceed with CA-00068822-001, the Claim for Unfair Dismissal

The Respondent resubmitted the documentation already submitted on 30 January 2025.

On 14 March 2025, the Complainant Solicitor submitted four further complaints against the Respondent, Martin Ryan Haulage Ltd

CA-00069995-001  European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00069995-003

CA-00069995-004

CA-0006995-005

The Respondent disputes all five live complaints.

Two complaints were also filed against the Transferor named as

John McGrath Haulage Transport Limited with a transfer date of 4 June 2024.

This latter file generated the Case number ADJ 58090 and is conjoined with this case.

On 19 November 2025, the parties were invited to hear on 19 January 2026 at 12noon.

On December 30, 2025, The Respondent filed their written submission.

On 23 January 2026, 4 days post hearing, I followed up on requested documentation sought at hearing.

DearEilean Hynes,

Please find enclosed a copy of correspondence sent to Mr Hallisey and Mr John Mc Grath.

I would be grateful if you could assist with provision of the CRO details you retained for Tom Mc Grath please as my CRO search has not yielded anything for either of the Mc Grath brothers.

Thank you.

Patsy Doyle.

Dear Maurice Hallissey,

I write in follow up to the hearing in these cases on 19 January last.

To assist in my decision, I require sight of employment documentation which carries the employer’s name John Mc Grath Haulage Transport ltd.

That is PRSI records, Sick pay records September 2024 and/or a proven commencement and cessation of employment on Revenue records.

I also require details of just who registered and ceased the complainant’s employment with Revenue.

My own attempts to source this Company on Core has failed and I require more detail, please within 14 days of this letter.

I will copy this to Ms Hynes, Respondent in the cases also for her comment.

I am also seeking details of the Tom Mc Grath Company from Ms Hynes within 14 days.

Thank You

Yours sincerely,

Patsy Doyle

The Complainant had not prepared a written submission at time of hearing and was given a narrow window of time to address this and respond to the Respondent submission.

The Complianant was assisted at hearing by an Interpreter online who availed of the Affirmation to accompany her translation.

At the conclusion of the hearing, I sought a copy of the job advertisement which led to the complainant’s employment with the respondent. I also sought pay slips from the employment linked to the named Transferor, John Mc Grath Haulage Transport Ltd.

The Complainant was first employed as a Lorry driver engaged in butter deliveries from 23 August 2021 by John Mc Grath Haulage Transport ltd until he joined the Respondent Martin Ryan Haulage ltd on 4 June 2024.

This service at John Mc Grath Haulage Transport ltd is presented as continuous through the application of the EC Protection of Employees (Transfer of Undertakings) Regulations 2003.

This contended continuity of tenure placed on the respondent is disputed by the Respondent.

The complainant came to hearing and confirmed a gross pay of €850.00 for a 60-hour week.

The Commercial background to the case surrounds the butter transportation contract first held by Tom and John Mc Grath, brothers in business and the respondent the most recent successful tender for contract.

CA-00068822-001 Claim for Unfair Dismissal:

The Complainant claimed that he was unfairly dismissed and sought the remedy of compensation if successful. He had not found new work.

From 23 August 2021, the Complainant had been delivering butter by truck. He was based on the company A site and worked for John Mc Grath Haulage ltd.

In or around the start of June 2024, the Respondent took over this business. Assurances were given to the complainant and other drivers.

 “That their conditions would remain the same and that the only change would be the entity that was paying him.”

The Complainant observed that conditions changed and drivers of the respondent company were allocated lighter duties. An earlier start to 5.30 evolved.

The Complainant took issue with the unmanageable workload he now faced. The physicality of the position had broadened greatly as he was told to carry different products.

A thread of texts followed in early September, and the complainant was told he had been dismissed on 3 September 2024.

He became ill and was unfit for work for one week. The Complainant was unsure if he was paid sick pay from the respondent at this time.

On his return, he was once again told that he was fired.

On 3 September 2024, the Complainant had notified a Mr Declan Ryan, a manager at the company that he was not physically capable of carrying out a task involving strapping fertiliser onto the bed of a truck. He also notified him of a problem with a gearbox. This resulted in his dismissal later that day by text.

What’s app or text attributed to the Respondent:

There's no change in anything that was spoken about in the meeting everyone was told they would be working between the two jobs if you had informed me of any medical condition that would have restricted you from carrying out your daily work I wouldn't have agreed to you starting with us on the basis of you not being able to do the work required and not pre advising us that you would not be suitable for the position l can't work you  You will be paid for the rest of the week and any other pay/holiday pay will be paid in full

What’s app or text attributed to the complainant.

 Noted- my firing date is today 3rd September,2024

What’s app or text attributed to the Respondent:

 You were not fired you refused to do your work just to be clear.

What’s app or text attributed to the complainant.

 I never refused to do my work. l am only not capable to do today's new duties due to back pain.lf I not fired why are you paying for my holidays, etc?

What’s app or text attributed to the Respondent:

Because we always pay people what they are due now good night

The Complainant proceeded on medically advised sick leave for one week.

On 11 September 2024, the complainant prepared for return to work but could not obtain any certainty or clarity on what awaited him.

He presented in person on the next day and a manager informed another worker, Mr A, a shunter that the complainant had been dismissed. The complainant went home.

Evidence of the Complainant, under oath

The complainant acknowledged that he did not have a prior knowledge of TUPE Regulations.

He had started on 23 August 2021 as a Lorry driver carrying butter with John Mc Grath.

He had previously worked with Sweeney Transport for 3.5 years carrying timber and fertiliser.

The work with John Mc Grath was based at a premises in Mitchelstown and he worked with his friends, who worked for Tom Mc Grath. The work was manageable and consisted of driving a “fridge trailer “.

He worked 5 days a week with occasion Saturday work, 8 am starts.

In May 2024, at a Meeting after work in Mitchelstown, John Mc Grath told him that the company was to be transferred to a new owner, the respondent. Tom Mc Grath, brother of his employer told them there would be no change to the driver’s job.

There was a follow up meeting 2/3 weeks later, where additional people attended and where the respondent was present. He was unclear on the duration of these meetings.

He joined the respondent with two more drivers and worked from the same base. He carried a driver card, now expired. He did not wear a uniform. The truck did not transfer, and his phone was replaced by the respondent.

Translation was provided by another worker, later explained as an IT person.

The transfer was seamless, all the drivers went and the only change was the pay slip. There were no other contemporaneous records surrounding the move. He was presented with a tachograph card 3 months into the employment.

The Complainant denied that he had participated in a recruitment process, an interview or probation.

For the first few months’ post transfer, the work was not very different. The Complainant was not keen to transfer loads due to a historical spine problem, known by John Mc Grath.

The Complainant explained that his reluctance to take on heavier work brought him into conflict with the respondent. On 3rd September 2024, he received a phone call and was informed of his dismissal, which believed was due to “my health condition “.

The next morning his blood pressure was raised requiring hospital intervention and sick leave.

He presented back to the base on 12 September, post sick leave and his presence challenged by a yard man who spoke to Mr Ryan and confirmed his dismissal.

“Why are you here, you have been dismissed “

The Complainant gave very limited evidence on loss and mitigation. He did not receive redundancy. He received job seekers benefit for 6 months.

He confirmed that in the course of his transfer, he did not make a specific request for translation.

 During cross examination, the complainant confirmed that he had received a new phone at the second company meeting. Everyone received a new phone, and they took some time to adjust to as it was a different phone.

He confirmed that he was given another truck to drive, different to his previous “curtain slider “

He denied receiving a handbook but acknowledged he had signed for it.

He recalled that the first company meeting in Mitchelstown announced the transition. He recalled the second meeting attended by the respondent and Tom Mc Grath confirmed that operations were moving and that John Mc Grath’s company was being taken over. “We are taking over the assets “

He understood that John Mc Grath had sent him to the meeting, but he did not terminate his employment but assured him of the transfer. Tom Mc Grath had given him assurances also and told him to apply for new job.

In closing for the complainant, Counsel argued for recognition of the circumstances of the case should be recognised as a “solid indicator “of a TUPE situation.

 In applying Spiker’s criteria, he stated that the criteria for “all prerequisites “did not have to be fully present, but sufficient to have “part there of “in transfer of tangible assets, economic entity ….

He argued that there had been a clear and seamless transfer of the complainant to Martin Ryans employment. He added that a substantial part of John Mc Grath’s business, delivery of butter and cheese had transferred such as:

1 all employees

2 branded assets

The Complainant had been unfairly dismissed by text message. He was not party to adequate consultation.

He had sustained a nett loss financial loss to date of hearing as €55, 520.00.

On 29 January 2026, Counsel for Mr Cesonis made a submission in response to the respondent’s reliance on the CJEU case of Suzen at hearing.

Mr Kiely distinguished the facts in the instant case fromSuzen successive contracts did not secure the protection of TUPE Regulations:

The application of the Suzen principles only applies in circumstances where there is only a change in contractor and no engagement by the new employer in acquiring any of the assets or workforce of the original contractor.

It is thus submitted that the legal principles as relied upon at the hearing as set out in the Spijkers -v- Gebroeders Bendik Abbatoir case (C-24/85) are those that are more applicable to the particular facts of the above-mentioned proceedings as opposed to the Suzen decision as referred to above.

Ryan & Ryan -v- Balfour Beatty CLG Limited reference (TU 24/25/2013)

Sanchez Hidalgo -v- Asociacion de Servicios (C-173/96 and C-247/96)

Canon -v- Noonan Cleaning Limited (1998) E.L.R. 153.

it is submitted on behalf of the Claimant that the TUPE regulations apply and that the Complainant enjoyed a continuity of service from John McGrath Haulage Transport Limited to Martin Ryan Haulage Limited.

CA-00069995-001

 EC Protection of Employees on Transfer of Undertakings Regulation 2003 (SI 131/2003)

The Complainant submitted that Martin Ryan Haulage ltd did not ensure that the complainants’ terms and conditions transferred from John Mc Grath Transport ltd.

CA-00069995-003

EC Protection of Employees on Transfer of Undertakings Regulation 2003 (SI 131/2003)

The Complainant submitted that Martin Ryan Haulage ltd disregarded the complainants’ terms and conditions.

CA-00069995-004

EC Protection of Employees on Transfer of Undertakings Regulation 2003 (SI 131/2003)

The Complainant submitted that he was dismissed by the respondent on grounds of transfer of undertaking. He was sacked for respectfully declining to carry out a task that had a high chance of seriously injuring his back.

The transferred drivers who had previously operated the butter and cheese route had left the respondent within a short period.

CA-00069995-005

EC Protection of Employees on Transfer of Undertakings Regulation 2003 (SI 131/2003)

The Complainant submitted that none of the usual TUPE documentation or notices were given to the complainant or other employees. This constituted a breach of the information pre requites of TUPE Regulations.

The Respondent operates a Haulage business, and it was common case that the complainant was employed by this entity from June 4, 2024, without a historical context of background employment.

An extract from the Statement of Terms issued on commencement framed this:

Your employment will commence on 01/06/2024. No previous period of employment with any other employer shall be treated as continuous employment with the Company.

The Respondent rejected in full the claims made by the Complainant under both the Unfair Dismissals Acts 1977–2015 and the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

Preliminary Argument.

 On 11 December 2025, Ms Hynes outlined a Preliminary argument that Martin Ryan Haulage ltd provided haulage services to a third party, company A.

As a result of a tendering process, Martin Ryan Haulage ltd was awarded a service level contract with Company A, not underpinned by sale, assignment, transfer succession, or a business on transfer.

Ms Hynes added that the respondent was a stand-alone business in that regard.

There was no transfer of a business or economic entity retaining its identity.

 There was no obligation under the tender process, nor any external or contractual requirement, to take on Mr. McGrath’s employees.

The Respondent’s operational plan was to service the Company A contract using its own workforce and its own equipment.

 While the Respondent purchased some (but not all) of Mr. McGrath’s equipment, the majority of the assets were retained by him, and he continues to operate his business independently.

 The Company A contract transitioned following a competitive tender and was not accompanied by the transfer of an organised grouping of employees or assets sufficient to constitute TUPE.

Ms Hynes contended that a competition took place at Martin Ryan Haulage ltd for drivers which was the context and background to the complainant’s commencement of employment.

“As a gesture of goodwill only, the Respondent invited some of Mr. McGrath’s drivers to apply for roles within the Respondent company. These individuals, including the Complainant, were required to participate in the standard recruitment and selection process applicable to all candidates.

Only those candidates who were successful were offered employment and were issued with the Respondent’s standard contracts of employment. Their employment was therefore new employment, commenced voluntarily, and not by operation of law under the TUPE Regulations.”

Accordingly, the Respondent denies that Regulations 4, 5, or 10 of S.I. No. 131 of 2003 apply, and the complaints under CA-00069995-001, -003, -004, and -005 are misconceived and must fail.

At hearing, Ms Hynes for the respondent outlined that the Respondent operated a contract for delivery of Kerry gold butter.

The contract had previously held by Mr Tom Mc Grath, whose company is still trading as reflected by the Company Registration Office.

The Respondent business commenced in 1960 with 15 vehicles and has grown to 90 vehicles.

In 2024, the Company entered a tendering process for the first time for the contract previously operated by John Mc Grath serving as sub-contractor to his brother Tom Mc Grath.

The Respondent was awarded the contract for a 5-year duration.

The Respondent made a decision to buy the Company A branded equipment as a cost-effective measure.

Ms Hynes exhibited an email from the Respondent dated April 9, 2025, for the WRC case. The author, Mr Brendan Ryan was not present at hearing. I have included this email to reflect the strength of feeling of territorial boundaries in the case.

… I would like to point out that the WRC have been miss informed that we took over the business from Tom Mcgrath, Firstly Tom Mcrath Transport is still trading, we purchased some equipment from Tom Mcgrath

 Ornua has been a customer of Martin Ryan Haulage for a number of years, The contract for refrigerated transport transporting butter from Kerrygold Park (owned by Company A) is a contract that we had to tender for along with other transport companies .

 So just to be clear again Martin Ryan Haulage did not takeover/purchase Tom Grath Transport as Tom Mcgrath Transport is still trading today and providing a transport service, I hope this clarifies the matter,

Ms Hynes undertook to submit the job advertisement relied on by the respondent which resulted in the complainant’s employment.

Evidence of Declan Ryan by oath:

Mr Ryan was a family member of respondent business. He had operational knowledge of Company A, based in Mitchelstown and the transportation system set up by Tom Mc Grath and his brother John.

The contract became “too big “requiring:

22 Trailers

5/6 curtain side trucks

7/10 Lorries

The Respondent took on the company A branded trailers at a cost of €3-4 K per trailer and ran the operation over 7 days.

Historically 8-10 trailers were operated by Tom Mc Grath and one trailer by John Mc Grath  

He recalled that the complainant was hired by one of his managers, Mr M after he had left John Mc Grath.

Mr Ryan acknowledged that there were two meetings with Tom Mc Grath and staff.

“We had won the contract and would be looking for staff. “Staff would be required to enter an application process.

He recalled those present at the meeting were informed by the respondent they were welcome to apply for positions.

He confirmed that an application form was not populated in the complainant’s case.

He made it clear that if Butter wasn’t transported, a default of further carriage would prevail. Prospective candidates were not required to move out of Mitchelstown.

Mr Ryan confirmed that 1-2 of John Mc Grath’s drivers were hired and 3-4 of Tom Mc   Grath’s drivers also.

No due diligence occurred and no employee files were transferred.

The Complainant had not given any account of medical problems on commencement in permanent employment.

By September 2024, the Complainant was complaining of lower back discomfort and refusing to work.

“If he was sick, we paid him “.

During Cross examination, Mr Ryan confirmed that the Complainant was the sole driver who came from John Mc Grath’s employment. He was hired independent of TUPE. 60% of the contract had been operated by the Mc Graths

The contract transferred seamless over a 24/7 basis. Trailers were initially hired then purchased.

He rejected any linkage to TUPE Regulations on transfer of assets or any kind of transfer.

“John Mc Grath approached me saying I will be letting them go and we employed them “He and his brother held a group interview to ascertain levels of work experience.

The Respondent employed the complainant on 13 June 2024. This was not a takeover.

There was no application process, but a formal group interview occurred.

Job details such as tax, prsi were provided by the complainant and not his former employer.

References were not sought. Mr Ryan referred to a verbal agreement where he would hire staff.

The outer perimeter of areas covered was Naas. Tachograph had to be given. Permission to work in Ireland was presumed.

In relation to the September 3, 2024, events, Mr Ryan confirmed that the respondent had not been informed prior to hiring the complainant that physicality of loads was a problem and he interpreted this as proof of absence of transfer.

The Complainant had referred to a Damian on site but there was nobody called Damian on the staff then but may have been there when he started.

Nobody informed him that the complainant had an underlying health issue “As far as I was concerned, he refused work “

He acknowledged that probation reports were not maintained. There was no job description.

He had no recall of the complainant returning to the office on 12 September 2024.

CA-00068822-001 Claim for Unfair Dismissal

The Respondent rejected the claim for unfair dismissal. Ms Hynes disputed that the complainant carried service for continuity purposes from John Mc Grath Transport ltd and was instead a new hire on consent. He was excluded in progressing his claim in accordance with Section 2 of the Act.

CA-00069995-001 Transfer of Undertakings Regulations, 2003

The Respondent disputed that the complainant transferred employment in accordance with the 2003 TUPE Regulations on June 4, 2024. He was recruited on a day 1 basis as a new recruit with agreed terms of employment and handbook.

CA-00069995-003 Transfer of Undertakings Regulations, 2003

The Respondent disputed that the complainant transferred employment in accordance with the 2003 TUPE Regulations on June 4, 2024. He was recruited on a day 1 basis as a new recruitment with agreed terms of employment and handbook.

CA-00069995-004 Transfer of Undertakings Regulations, 2003

The Respondent disputed that the complainant transferred employment in accordance with the 2003 TUPE Regulations on June 4, 2024. He was recruited on a day 1 basis as a new recruitment with agreed terms of employment and handbook.

His dismissal was not prefaced by 12 months continuous service of the TUPE Regulations 2003.

He lacked locus standi to proceed in this case.

CA-00069995-005 Transfer of Undertakings Regulations, 2003

The Respondent disputed that the complainant transferred employment in accordance with the 2003 TUPE Regulations on June 4, 2024. He was recruited on a day 1 basis as a new recruitment with agreed terms of employment and handbook.

In conclusion, Ms Hynes rejected the claim and insisted that the complainant was not unfairly dismissed or that TUPE Regulations had any impact in this case.

Reliant on C-13/95 Suzen Zehnacker Gebaudereingung Gmbh, European Court of Justice, when a change in service provider following a competitive tender does not of itself constitute a transfer, there must be a transfer of an identifiable economic entity which retains its identity as applied in:

ADJ 54050 Simon Legg v Ceva Logistics, TUPE did not apply where there was no identifiable economic entity capable of transfer.

 ADJ  53370, Eanna Larkin v Premier Service Station ltd, where TUPE was found not to arise in the absence of a transfer of assets, workforce, or identifiable undertaking.

On 19 February 2026, Ms Hynes for the Respondent responded to Mr Kiely’s Submission post hearing:

In those submissions, it is suggested that the decision in Suzen -v- Zehnacker Gebäudereinigung GMBH (C-13/95) does not apply. This appears to be based on the statement that: “During the course of this engagement Martin Ryan Haulage Limited agreed to take over all of the truck drivers that were driving for John McGrath Haulage Transport Limited and also some of the assets of the said company…” It is respectfully submitted that this is completely incorrect. At no point did Martin Ryan Haulage Limited agree to take over all of the drivers, nor was there an agreement to take over the assets in the manner suggested. The Supplemental Submissions are therefore based on an assumption that is not supported by the evidence given at the hearing. For these reasons, it is submitted that the principles set out in Suzen remain applicable to this case.

I have been requested to make a decision in the four claims submitted by the complainant in this conjoined case with ADJ 58090.

While the case benefitted from the Respondent presence, there was no appearance by any representative or proprietor of John Mc Grath Haulage ltd and no reason given for this nonattendance. I will return to this later.

For now, I want to record that in reaching my decisions, I have taken account of all paper submissions received at all stages of these complaints. I am certain that the case would have been aided by a prehearing written submission from the complainant side.

I am grateful to the respondent for their prehearing preparation.

I have taken account of the direct evidence adduced by each party and would have liked to have met with both Mr John and Mr Tom Mc Grath as the circumstances of the case were very much linked to the contract operated by Mr Tom Mc Grath and on a sub-contractor basis by Mr John Mc Grath.

I am satisfied that both companies are still trading, and I can see no apparent reason for their singular or collective absence from hearing.

The employment with John Mc Grath Haulage ltd is the source and curtain raiser in this case. It is Act 1.

The employment with Martin Ryan Transport ltd is Act 2 and the finale.

CA-00069995-001 Claim for Unfair Dismissal

I have been asked to consider the circumstances of a dismissal in September 2024.

The fact of the dismissal is not disputed, however, the locus standi is hotly disputed by the respondent who has consistently contended that the complainant did not acquire rights outside of day 1 of employment when he commenced work with Martin Ryan Haulage ltd in June 2024. This excluded him from the provisions of the Act.

The Complainant says that he entered an honourable transfer of employment on continuity from John Mc Grath and that he carried with him the acquired right to contest his dismissal.

I must decide on this Preliminary issue prior to being able to consider the facts of the substantive case. This requires that I consider whether TUPE Regulations have application in this case or not.

Preliminary Issue:

  Locus Standi to advance a claim for Unfair Dismissal in a contested TUPE climate:

Section 2 of the Unfair Dismissals Act 1977 separates employees in possession of 1 year’s continuous service from those that do not.

Exclusions.

2.— (1) Except in so far as any provision of this Act otherwise providesthis Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him 

The Respondent argument is clear; there are no sets of circumstances or no legal avenues open to the complainant to advance his case for unfair dismissal. He has no locus standi as he presented to the respondent as a day 1 employee as evidenced in the foundation documents of employment.

Conversely, the Complainant argues in the alternative, that he acquired rights from his employment with John Mc Grath Haulage Transport ltd, which he carried on transfer to the respondent employment in June 2024. The central right, relied on was that his continuity of service be recognised so that he is not excluded from challenging his unanticipated dismissal.

I have two polarised positions before me.

The Complainant contends that he can safely rely on TUPE Regulations to bridge the impasse. The Respondent contends he cannot rely on TUPE as no transfer took place or no identity endured.

I must now explore whether the European Communities Protection of Employees on Transfer of Undertakings Regulations SI 131 of 2003 has application to the facts of this case.?

The area of what European or Domestic legislative framework, if any, in an apparent transfer of employment applies has its roots in the Acquired Rights Directive in 1977.

A period of uncertainty followed into the Council of Europe adopting a second Directive 98/50/ EC in 1998

“It was hoped that the second Directive would address particular problems that had arisen with the operation of the first Directive, most notably the lack of clarity on how contracting out of services by an employer should be treated, Suzen Case C-13/95[1997] ECR 1-1259 “Gary Byrne in Chapter 23 Transfer of Undertakings, Maeve Regan, 2nd edition, Employment Law.

The economic entity must be of long-lasting nature, its activity is not limited to performing one specific work contract, C-48/94 Rygaard. Mr Rygaard was placed on notice of dismissal when employed by a carpentry firm.

The company was operating an ongoing building contract and transferred workers and materials to another company to complete this contract, while the company was being wound down.

The CJEU in reflecting on Spijkers and Schmit C-392-92 did not find a transfer of undertaking situation.

 20 The authorities cited above presuppose that the transfer relates to a stable economic entity whose activity is not limited to performing one specific works contract.

 21 That is not the case of an undertaking which transfers to another undertaking one of its building works with a view to the completion of that work. Such a transfer could come within the terms of the directive only if it included the transfer of a body of assets enabling the activities or certain activities of the transferor undertaking to be carried on in a stable way.

 22 23 24 That is not so where, as in the case now referred, the transferor undertaking merely makes available to the new contractor certain workers and material for carrying out the works in question. The reply to the question submitted must therefore be that the taking over, with a view to completing, with the consent of the awarder of the main building contract, works started by another undertaking, of two apprentices and an employee, together with the materials assigned to those works, does not constitute a transfer of an undertaking, business or part of a business, within the meaning of Article 1(1) of the Directive.

The second Directive sought to refine the definition of transfer.

The third Directive, the Acquired Rights Directive followed in 2001/23 EC.

“It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded “Preamble.

  Universal aim across the EU was to reduce member state differences.

Article 1(a) of the Directive:

This Directive shall apply to any transfer of an undertaking, business or part of an undertaking or business to another employer as a result of a legal transfer or merger.

Transfer is defined as

“The transfer of an economic entity which retains its identity “

Regulation 3(2)

Economic entity is:

An organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is ancillary to another economic or administrative entity.

Ireland adopted the wording of the 2001 Directive in European Communities (Protection of Employees on Transfer of Undertakings) Regulations SI 131 of 2003

Where the Directive and/or the Regulations are breached, liability in the main falls on the transferee.

Firstly, I considered the application of Suzen C-13/95 as directed by the Respondent.

This is a case that considered a second-generation contract when Ms Suzen and 7 other school contracts cleaners were dismissed in June 1994, and the contract awarded to another entity.

“The term entity thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective “

The CJEU identified a two-part test in finding that the protection of the Directive could not be presumed in response to a request for a Preliminary reference.

The answer to the questions from the national court must therefore be that Article 1(1) of the directive is to be interpreted as meaning that the directive does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their numbers and skills, assigned by his predecessor to the performance of the contract.

In the instant case, the employment relationship, first in time put before the Tribunal is that of the complainant and John Mc Grath Haulage ltd. I have not had the benefit of an exhibited contract of employment from that era. I have a Revenue record 31 August 2021 to 31 May 2024 with a final gross pay of €635 gross on 4 June 2024 for John Mc Grath company. I have a Revenue record 1 June 2024 to 3 September 2024 with final salary of €1,340 on 12 September 2024 for the Respondent employment. €650.00 gross.

 Company A for whom John Mc Grath Haulage ltd together with his brother’s company operated the butter distribution run is more akin to the position of school in Suzen as they changed the contract to the respondent for a 5-year term in June 2024. I inquired into the service Level Agreement, the second-generation contract, but neither party exhibited it.

Ms Suzen and her 7 colleagues were terminated by the school. Mr Mc Grath did not terminate the complainant’s employment. Instead, I accept the complainant evidence that he understood that he was being taken on by the respondent and the only difference was the pay slip.

He did not transfer with personal equipment as he was provided with a new phone, which he admitted he had difficulties operating. He drove the same delivery run but the route became complicated when he was asked to load which he had not done with John Mc Grath. He did drive not the same truck. Mr Ryan gave evidence that some trucks were initially hired then purchased. Mr John Mc Grath had one trailer, his brother had more. Somewhere between 4-6 drivers joined the respondent who were associated with the Mc Grath’s employment, described by Mr Ryan as 60% of the contract. The business of delivering butter endured and broadened to more complex work. On commencement of employment in June 2024, I accept that the complainant operated his work in the same method he had at 31 May 2024.

By May 31, 2024, the complainant had acquired rights of continuity of tenure and rights to redundancy. The Complainant must take some responsibility for the lack of clarity in his own case. He signed a statement of terms of employment which negated any earlier employment. He ought to have been much more vigilant given his reported participation in two meetings which he said guaranteed  him continuity of employment.

This is a case which would have benefitted from representation at a much earlier stage . The TUPE Regulations make specific reference to employee representation .

There are no signs of an expected due diligence in such situations by the respondent, who perhaps focussed their sole attention in securing a 5-year contract on butter delivery. However, what happened the workforce covered by the previous contracts, if any ? This is now the residual factor before the WRC.

I cannot give the respondent a full application of Suzen as I have found that the complainant went to work for the respondent without any of the referred to pre-employment ceremonies listed in the respondent staff handbook.

I was not provided with a job advertisement, I was not given a probation report, I was not given any minutes of the meetings which occurred at the Firgrove. However, I must on the balance of probabilities conclude that this amounted to a recruitment forum. The complainant was not interviewed for employment with the respondent.

At this juncture, the Respondent hired the complainant on June 1, 2024, directly from John Mc Grath Haulage Transport without break in service or application of any of the measures prescribed to hiring a new entrant to the company. The respondent attempted to place an immunity clause in the statement when they inserted the following clause in the statement signed by the complainant on 13 June 2024.

DATE OF EMPLOYMENT    1.1 Your employment will commence on 01/06/2024. No previous period of employment with any other employer shall be treated as continuous employment with the Company. 

 He took over his employment, placed him as a driver and paid a slight pay increase. The employment was a contract of indefinite duration. As there was no foundation contract from 2021, I have been unable to ascertain whether the complainant was temporary or permanent in John Mc Grath Haulage ltd. Jouini C 458/05.

The respondent ought to have inquired when Mr Mc Grath told him that he was letting the complainant go, whether it was through redundancy or severance? That would have cogently clarified liabilities at the ground level.

Des Ryan BL in Chapter 18 Redmond Dismissal Law guides at this point:

The Employees (Provision of Information and Consultation) Act 2006,

s 21(3) is significant here:

 it imposes an obligation on the old employer to notify the

new employer:

‘Of all the rights and obligations, arising from a contract of employment existing on the

date of a transfer, which will be transferred to the transferee, as far as those rights and

obligations are, or ought to have been, known to the transferor at the time of transfer.’

And:

‘A failure by the transferor to notify the transferee of any such right or obligation shall not.

affect the transfer of that right or obligation ….’

I would have expected that this matter would have been scrutinised had due diligence occurred in a proper fashion.

The Respondent continued the same economic activity of delivering butter by contract after the transfer occurred and both parties accept that the butter delivery to the existing customer base was long lasting and endured albeit on a grander and more elaborate scale. He and his colleagues reported to a different manager.

I now wish to return briefly to a domestic law consideration in an EAT Decision from 1992 Mulqueen and Mulqueen v Verit hotel and v Leisure Ireland ltd UD 202/203/92

The facts make an interesting read. The Complainants were employees and directors of Nenagh Lodge hotel, Mortlake ltd sold to the respondent. As a condition of sale, all employees including the complainants were terminated and subsequently re-employed by the respondent a week later.

Claims under unfair dismissal were lodged and tenure contested.

Ercus Stewart SC representing the complainants pleaded continuity and protection of Transfer of Undertaking Regulations 1980. He augmented his argument by reliance on Section 13 of he Act on voidance of contract and Section 20 as amended by the First Schedule of the Minimum Notice and Terms of Employment Act 1973.

The EAT accepted that the complainants had continuity of service for the purpose of bringing a claim under the Act.

1 the hotel was sold as a going concern.

2 Contention of estoppel was refused.

3 requisite service existed to ground the claim under the unfair dismissals act 1977 and The Transfer of Undertaking Regulations. Regulation 3 and 5.

I have established continuity of employment in the instant case, but can the Complainant avail of the protection of TUPE?

The Respondent has directed that I apply the Spijkers test to the circumstances of this case.

Before I do this, I want to consider Case C 340/01 Carlito Abler v Sodexho and Ors, 2003

The ECJ ruled that a change in a hospital catering contract, which took over kitchen facilities and equipment for meal preparation, while owned by the client constituted a transfer of economic entity via the infrastructure even when the second contractor has expressed the intention not to take on the employees of the first contractor.

The fact that the tangible assets taken over by the new contractor did not belong to its predecessor but were provided by the contracting authority cannot therefore preclude the existence of a transfer within the meaning of Directive 77/187.

 The answer to the question of the referring court must therefore be that Article 1 of Directive 77/187 must be interpreted as applying to a situation in which a contracting authority which had awarded the contract for the management of the catering services in a hospital to one contractor terminates that contract and concludes a contract for the supply of the same services with a second contractor, where the second contractor uses substantial parts of the tangible assets previously used by the first contractor and subsequently made available to it by the contracting authority, even where the second contractor has expressed the intention not to take on the employees of the first contractor.

In Guney -Gorres C-232/04, the CJEU focussed on operational possession and use of security scanners at an airport amounted to a legal chain of transfer and TUPE applied for the workforce.

‘... even if the Tribunal were to find that there had been no agreement on the part of the

respondent to employ the claimants, the Tribunal holds that the respondent is not entitled.

to rely on the ‘dismissal’ effected [by the vendor].’

Spijkers v Gebroeders Benedik Abattoir CV, C-24/85

Mr Spijker was assistant manager in a slaughterhouse, in 1982, his employer, Colaris shut down and sold the business to Benedik Abattoir who retained all the workers bar Mr Spijker who was ill; and another. Benedik reopened the business and resumed trading; the client list was no longer present.

The ECJ focussed on whether Benedik had hosted a transfer of an economic entity which had retained its identity.

It is from here that the multi factor test emerged.

Ultimately, Mr Spijker succeeded in the Netherlands was re-instated on foot of a proven transfer protected by the Regulations.

In terms of the instant case

1 The type of business

John Mc Grath Haulage Transport ltd was a haulier company who together with his brother’s business operated a butter distribution run for Company A. I accept Mr Ryans evidence that this combination formed a 60% of the contract.

2 Transfer of tangible assets

Some refrigerated lorries transferred from Company A on lease before the respondent purchased trailers. The Mitchelstown depot endured.

3 Intangible assets

The customer client base was the same as the contract moved to the respondent. The complainants’ drivers card prevails as did customer good will.

4 Takeover of the majority of the employees

The Complainant gave evidence that three drivers had come across to the respondent from John Mc Grath’s business. He was unable to name the others. Mr Ryan gave evidence that 1-2 drivers had joined who ahd previously been employed by John Mc Grath and 3-4 drivers from his brother’s company.

John Mc Grath business continues to trade.

5 Transfer of customers

This occurred as evidenced by both parties

6 Degree of similarity between the activities carried out before and after

The complainant submitted that the only difference between his May and June 2024 work was his pay slip. Everything else was the same until the respondent added some challenging loads in the aftermath of butter delivery, which he struggled with.

The Respondent accepted that he had attended a meeting with the Mc Grath businesses staff. Mr Ryan accepted that the complainant was hired for his driving ability and experience. He accepted the job was the operation of the butter delivery contract.

I find that the activities were identical.

7 Period if anywhere activities were suspended.

None

The Labour Court applied the test in TUD 1810 Euro Car Parks ltd v Patrick O Hanlon and held that the essential part the business carried on and formed a transfer protected by TUPE where continuous service was upheld.

In Bidvest Noonan ROI ltd and Lynch TUD 203, the Labour Court held agency workers in a hospital setting who were dismissed and replaced by other Agency staff did not constitute an economic entity so as to support a protection of TUPE.

Recital 3 of Directive 2001/23 states that ‘it is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded’. According to recital 8 of that directive, ‘considerations of legal security and transparency required that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice.

 Such clarification has not altered the scope of Directive [77/187] as interpreted by the Court of Justice’.

This case comes into a sharper focus when I consider the CJEU case of

Reiner Grafe and Jürgen Pohle v Süd Brandenburger Nahverkehrs GmbH and OSL Bus GmbH (Case C-298/18),

Which chronicles the first in time employer SBN held a tender for public bus transport and the tender was awarded to KD in August 2017. OSL, a subsidiary of KD recruited the majority of the drivers. Prior to this SBN had considered redundancies, opportunities for re-employment or loss of earnings. This occurred as the company had decided they were unable to compete in the modernised imperatives for tender.

Mr Grafe was dismissed by SBN on 31 August 2017 and hired by OSL, albeit on “entry level “without regard for past service.

SBN had supported Mr Grafes bid for protection by the Regulations.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and ECLI:EU:C:2020:121 7 JUDGMENT OF 27. 2. 2020 — CASE C–298/18 GRAFE AND POHLE technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking-over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

Outcome of Preliminary Issue:

I have given consideration to the party’s positions on whether the complainant can avail of the TUPE Regulations in this case.?

There is a lot I am dissatisfied with in term of the only shred of material evidence I can find from John Mc Grath Haulage ltd is a pay slip and Revenue record of tenure.

I am also dissatisfied that neither party retained any notes or records of the meetings in the Firgrove Hotel in May 2024. The timing of these meetings and the aftermath of the complaining joining the respondent employment, without termination, severance, redundancy, or optimal recruitment demonstrates that he glided into employment with the respondent on June 1, 2024.

However, it is the nature of the work the complainant did from June 2024 that has persuaded me along with Mulqueen that this was essentially the same work that he did with John Mc Grath without a break in service.

I find that the attempted immunity clause in the statement of terms is void.

I have found that this work retained its identity post transfer and constituted a transfer of part of an undertaking to another employer, the respondent as a result of a legal transfer. He is not restrained by the lack of a comprehensive transfer of tangible assets.

I have not seen the Service Level Agreement with Company A with the first or second employer. I have made my decision on the evidence adduced at hearing.

The continuity of employment occurred as a consequence of that transfer.

I find that the Complainant can avail of the Protections of TUPE Regulations 2003 on continuity of service and strengthened by the application of sections 13 and 20 of the Unfair Dismissals Act 1977.

CA-00068822-001 Claim for Unfair Dismissal

I have found that the complainant is not excluded from making his claim for unfair dismissal and has the protection of EC Protection of Employees on Transfer of Undertakings Regulations 2003.

I have listened carefully as both parties recalled the events of early September 2024. I have reviewed the what’s app extracts.

I am satisfied that the complainant was dismissed from his employment on 3 September 2024. This was the date recorded on the Revenue web site and the final pay slip carried an expanded payment notable to cessation.

Under section 6(1) of the Act, a dismissal is deemed to be unfair unless having regard to all the circumstances there were substantial grounds for the dismissal.

The Complainant was clearly in disagreement on work allocation, but he had not submitted a grievance.

I found a certain amount of entrapment contained in the exhibited what’s apps on this topic.

I was not convinced by his evidence on sick leave as he did not submit a back to work certificate before September 12. I found the reports of his rambling into work to be overly casual and unconvincing.

For the Respondent, on whom the burden of proof lies, I found a carelessness in how the complainant was treated. Given the volume of pre-employment documentation referred to in the handbook, I was struck by a void in documentation which pertained to the cessation of employment or even provision for an appeal.

I also found the complainant made insufficient efforts to save his job.

I found his tabled loss and mitigation to be piece meal and ceased when he was placed on illness benefit on 25 June 2025 as he has not been available for work from that point.

The Respondent has not submitted grounds for dismissing the complainant outside of his disappointment that he had not declared preexisting illness.

I found provision in the respondent documentation for pre-employment screening in a recruitment context. This was not actioned, nor was this information carried forward in any due diligence on transfer.

I musty conclude having considered the evidence adduced by both parties that the complainant was unfairly dismissed. I could not establish substantial grounds for his dismissal, nor could I establish that the respondent behaved reasonably in conducting the dismissal.

However, I found that the complainant contributed to his dismissal.

I find compensation is the only viable remedy open to me.

The Complainant was unfairly dismissed.

 EC Protection of Employees on Transfer of Undertakings Regulations 2003.

10.Decision under section 41 of Workplace Relations Act 2015

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely—

(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 the adjudication officer considers 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.

My jurisdiction on these 4 complaints is derived from Section 41(6) of the Workplace Relations Act 2015 and the TUPE Regulations.

Section 41 guides here

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.

The complaints

CA-00069995-001 Regulation 4 TUPE

CA-00069995-003 Regulation 4

CA-00069995-004 Regulation 5 (4)

 If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2015], relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

CA-00069995-005 Regulation 8

Were referred to the WRC on 14 March 2025. All refer to the Respondent as transferee.

I have established that a transfer of employment took place as a consequence of the transfer of contract.

The transfer at the centre of this case took place on either June 1, 2024, as reflected on the complainant’s statement of terms and Revenue report or June 4, 2024, as reflected in the narrative.

 A careful application of Section 41(6) allows me to consider the period 15 September 2024 to 14 March 2025. I must establish if the Regulations were breached within that timeline?

The circumstances of the transfer took place 3 months before this period in June 2024.

The employment had ended on September 3, 2024.

CA-00069995-001 Regulation 4 TUPE

I find the complaint was lodged outside the statutory period of limitation and is statute barred.

 I am unable to take the matter further.

CA-00069995-003 Regulation 4

I find the complaint was lodged outside the statutory period of limitation and is statute barred.

 I am unable to take the matter further.

CA-00069995-004 Regulation 5 (4)

 If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2015], relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

This claim is not well founded.

Regulation 5(4) prohibits the Complainant in recovery under the Regulations and the Unfair Act, 1977.

The Complainant has already succeeded in his claim under the Unfair Dismissals Act. He cannot recover twice.

CA-00069995-005 Regulation 8 

I find the complaint was lodged outside the statutory period of limitation and is statute barred.

 I am unable to take the matter further.

Section 8 of the Unfair Dismissals Act 1977  requires that I make a decision in relation to the complaints in accordance with Section 6 of that Act and redress provisions in Section 7 .

CA-00068822-001 Claim for Unfair Dismissal

I have found that the Complainant was unfairly dismissed. I found that he made a 30 % contribution to his dismissal and has not been available for work from 25 June 2025. This impacts on his actual financial loss.

I find compensation is the only viable remedy open to me. I order the Respondent to pay the Complainant €18,000 as a just and equitable remedy for his dismissal.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to these 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 relation to the complaints in accordance with the relevant redress provisions under Regulation  10 .

CA-0006995-001

I have established that a transfer of employment took place as a consequence of the transfer of contract.

The transfer at the centre of this case took place on either June 1, 2024, as reflected on the complainant’s statement of terms and Revenue report or June 4, 2024, as reflected in the narrative.

 A careful application of Section 41(6) allows me to consider the period 15 September 2024 to 14 March 2025. I must establish if the Regulation 4 was breached within that timeline?

The circumstances of the transfer took place 3 months before this period in June 2024.

The employment had ended on September 3, 2024.

I find the complaint was lodged outside the statutory period of limitation and is statute barred.

 I am unable to take the matter further.

CA-00069995-003

I have established that a transfer of employment took place as a consequence of the transfer of contract.

The transfer at the centre of this case took place on either June 1, 2024, as reflected on the complainant’s statement of terms and Revenue report or June 4, 2024, as reflected in the narrative.

 A careful application of Section 41(6) allows me to consider the period 15 September 2024 to 14 March 2025. I must establish if the Regulation 4 breached within that timeline.

The circumstances of the transfer took place 3 months before this period in June 2024.

The employment had ended on September 3, 2024.

I find the complaint was lodged outside the statutory period of limitation and is statute barred.

 I am unable to take the matter further.

CA-00069995-004

This claim is not well founded.

Regulation 5(4) prohibits the Complainant in recovery under the Regulations and the Unfair Act, 1977.

The Complainant has already succeeded in his claim under the Unfair Dismissals Act. He cannot recover twice.

CA-00069995-005

I have established that a transfer of employment took place as a consequence of the transfer of contract.

The transfer at the centre of this case took place on either June 1, 2024, as reflected on the complainant’s statement of terms and Revenue report or June 4, 2024, as reflected in the narrative.

 A careful application of Section 41(6) allows me to consider the period 15 September 2024 to 14 March 2025. I must establish if the Regulation 8 was breached within that timeline?

The circumstances of the transfer took place 3 months before this period in June 2024.

The employment had ended on September 3, 2024.

I find the complaint was lodged outside the statutory period of limitation and is statute barred.

 I am unable to take the matter further.

Transfer of Undertakings