Complainant

Respondent

Parties

Algis  Cesonis

John McGrath Haulage Transport Limited

Representatives

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

No Appearance by or on behalf of the Respondent

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-00069995-002

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-00069995-006

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 in ADJ 56598, conjoined case.

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

23 August 2021 to 3 September 2024.

On receipt of the first in time complaint in mid-February 2025, the Respondent disputed the contention of continuity of employment.

On 14 March 2025, the Complainants solicitor submitted a number of further complaints seeking to demonstrate that the complainant was protected by the

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

He identified the Transferor in that context as the Respondent in the instant case as:

John Mc Grath Haulage Transport Ltd

Mr. Hallisey for the Complainant argued:

In mid-February we received correspondence from the Workplace Relations Commission which enclosed correspondence from the representatives of Martin Ryan Haulage Limited. It was suggested in that correspondence that the Claimant did not have the requisite one year's service. The implication in that letter was that there had been no transfer of undertakings previously from John McGrath Haulage Transport Limited to Martin Ryan Haulage Limited. This is incorrect. Such a transfer took place on or about the 4th of June 2024.

 We are enclosing with our application the text exchange which resulted in the Claimant being sacked. You will note that in the exchange of the said text there is a reference for a "company meeting". This refers to one of two pre-transfer meetings that took place at The Firgrove Hotel in Mitchelstown, Co. Cork. The suggestion that the Claimant did not have the requisite one year's service came to the attention of the Claimant's representatives on the l3th of February 2025. Accordingly, an application will be made to extend time for the submission of the transfer of undertaking complaints.

The named Respondent in this case has not engaged in the claim. The company is still trading, albeit there are some worrying omissions on the CRO website.

For the purposes of this case, the Respondent has not filed a defence, has not attended the hearing and has not furnished any reason for that non-attendance.

On 19 February 2026, some 4 weeks of post hearing, Ms. Hynes, representative for the named employer in the conjoined case indicated she was prepared to be a contact for this case. This was the position adopted at hearing and may have been an oversight.

In the meantime, the named Respondent has been furnished with the complainant’s entire case in ADJ 58090, the instant case and the conjoined case of ADJ 56598   as the identified Transferor.

I found the failure to participate in any way to be disrespectful to a Statutory Tribunal.

I seem to have had material access to just two remnants of this employment, namely a pay slip and Revenue record.

I should have had a lot of lot more. I have listened to the Complainants’ evidence, but he was unable to provide a contract of employment or any sort of transfer of employment papers.

At the conclusion of the hearing, which was made more challenging without the alleged Transferor, I wrote to both representatives   present at hearing.

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 have 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

I received some revenue records which placed the complainant as having a start date of 31 August 2021 and a closing date of 31 May 2024.

These complaints were lodged on 14 March 2025.

Since August of 2021 the Claimant worked for John McGrath Transport without a problem. Based in Kerrygold in Mitchelstown, the Claimant delivered butter in a refrigerated truck and sometimes collected other products for the return journey. He did not do physical work such as loading.

He earned €850.00 for a 60-hr week.

 Around the start of June 2024, Martin Ryan Haulage Limited took over the company. The Claimant and other drivers were told that their conditions would remain the same, and that the only change would be the entity that was paying him. In fact, the conditions did not remain the same.

 In particular, drivers from Martin Ryan Haulage were allocated to the lighter butter deliveries. The Claimant nevertheless endeavoured to carry out his work to the best of his ability. Because of a bad back, however, the Claimant was not physically capable of carrying out a particular task (strapping fertilizer onto the bed of a truck).

The Claimant submitted a claim for Unfair Dismissal to the Workplace Relations Commission (WRC). On the 13th of February 2025, the Claimant's representatives (James V. Walsh & Son, Solicitors) received from the WRC correspondence from the Respondent's representative stating that the Claimant was only working for Martin Ryan Haulage since 1st June 2024 and therefore did not have the required years’ service for the purpose of the Unfair Dismissals Act.

 The implication is that no Transfer of Undertaking had previously taken place between John McGrath Transport Limited and Martin Ryan Haulage Limited. This is incorrect: a transfer did take place from John McGrath Transport Limited to Martin Ryan Haulage Limited. A formal meeting in the Firgrove Hotel in Mitchelstown was held for precisely that purpose on Thursday 9th May 2024. The Claimant and other employees were assured that their terms and conditions would remain the same. A further pre-transfer meeting took place shortly afterwards. The transfer took effect in or about the 4th of June 2024. As can be seen from the above account, Martin Ryan Haulage did not ensure that the Claimant's terms and conditions transferred from John McGrath Transport Limited.

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

CA-000069995-002

The Complainants   previous employer John McGrath Transport Limited did not ensure that the complainants’ terms and conditions were transferred to Martin Ryan Haulage Limited.

CA-00069995-006

 The Complainants   previous employer John McGrath Transport Limited 's terms and conditions were properly conveyed to Martin Ryan Haulage Limited, that company disregarded them. None of the usual TUPE documents were given to the Complainant.

There was no appearance by or on behalf of John Mc Grath   Haulage Transport ltd in relation to these claims.

CA-000069995-002

CA-000069995-006

CRO website reflects this company is still trading.

I have been requested to reach decisions in relation to both of these latter-day complaints submitted on 14 March 2025, which referred to a purported transfer of undertakings between Transferor and Transferee in the conjoined case.

In reaching my decision, I have had regard for the Complainants submissions and evidence. In spite of the WRCs best attempts to invite Mr John Mc Grath to participate in this case, I did not have the benefit of the respondent engagement in the case. I did not receive a written submission in defence of the case and there was no appearance at hearing on behalf of this company.

The Complainant, through his representatives contended that he worked for the Respondent named in this case.

He gave sworn evidence on this aspect of his working life. It was uncontested by the Respondent.

The commercial climate concerned the complainant’s role as a Lorry Driver engaged in a service level agreement where butter was delivered.

 I believe him. However, I am disappointed that the complainant did not campaign to seek clarity on his terms and conditions which I have found transferred within the TUPE Regulations.

I found no evidence of his chasing these reassurances now sought within the respondent employment through employee representatives or otherwise.

  However, Revenue records support the submitted record of employment contention. The exhibited pay slip was generated there.

Both claims in the instant case were referred to the WRC on 14 March 2025. Both refer to the Respondent as transferor.

Regulation 2 defines a Transferor as:

“transferor” means any natural or legal person who, by reason of a transfer within the meaning of these Regulations, ceases to be the employer in respect of the undertaking business or part of the undertaking or business;

Regulation 3 outlines the scope of the Regulations in:

I have established that a transfer of employment occurred as a consequence of the transfer of contract in the conjoined case.

The transfer at the centre of this case took place on either June 1, 2024, as reflected on the complainant’s statement of terms in the conjoined case or June 4, 22024 as reflected in the narrative of the case.

 A careful application of Section 41(6) of the Workplace Relations Act, 2025, from where my jurisdiction is drawn in these matters, allows me to consider the period 15 September 2024 to 14 March 2025.

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.

I must establish if the Regulations were breached within that timeline? I can, for reasonable cause under Section 41(8) of that Act extend time up to 12 months i.e. 15 March -15 September 2024 .

The complainant submitted that his employment transferred to the respondent in the conjoined case on June 1-4, 2024.

I have listened carefully to the complainant’s evidence and submissions advanced on his behalf; I have not been persuaded that the reasons for his delay in submitting these claims to the WRC can be explained or excused to my satisfaction.

 I did not have the respondent present at hearing to hear if the company might be prejudiced by this delay.

Both claims are manifestly out of time and are as a consequence statute barred.

Cementation Skanska v Carroll DWT 0338 applied.

CA-00069995-006  

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 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

 Regulation 10 of 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 these complaints in accordance with the Regulations.                                                                                                               

CA-00069995-002 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-00069995-006   I find the complaint was lodged outside the statutory period of limitation and is statute barred. I am unable to take the matter further.   

Non-Appearance by Transferor in claim for Protection of TUPE Regulations