ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024521
Parties:
| Complainant | Respondent |
Anonymised Parties | Cleaning Operative | Contract Cleaning Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031021-001 | 20/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00031021-002 | 20/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00031021-003 | 20/09/2019 |
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-00031021-004 | 20/09/2019 |
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-00031021-006 | 20/09/2019 |
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-00031021-008 | 20/09/2019 |
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-00031021-009 | 20/09/2019 |
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-00031021-010 | 20/09/2019 |
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-00031021-011 | 20/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00031021-012 | 20/09/2019 |
Date of Adjudication Hearing: 14/02/2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Regulation 10 of the European Communities (Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) and Section 7 of the Terms of Employment Information Act 1994, and Section 11 of the Minimum Notice and Terms of Employment Act 1973, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The core issue to be determined is whether there was a transfer of undertakings from a previous contract cleaning company to the Respondent in this case. Once the matter of the TUPE is determined then the claims under the Terms of Employment (Information) Act; Unfair Dismissals Act; Minimum Notice and Terms of Employment Act; and Transfer of Undertakings Regulations S.I. 131 of 2003 can be determined. This decision can be read in conjunction with ADJ-00024265. |
Summary of Complainant’s Case:
The Complainant was employed as a cleaner in the same location by a previous contract cleaning service provider from 1st July 2002 to 7th December 2018. Her rate of pay with the previous contractor was €81.00 per week employed for 7.5 hours per week. On 9th November 2018 she received protective notice from the previous contractor who advised her of her rights under the Transfer of Undertakings. From December 7th into January she took scheduled annual leave. In January she attended at her place of work and met with the Respondent who told her that he had no work for her. She believed that at all times she was covered by the transfer of undertakings. At the meeting in January the Respondent indicated that he may contact her later about work and he did so on 25th July 2019 when he offered her work of four hours per week at €10.50 per hour. This gave rise to an issue for the Complainant. She says she went back to the previous contractor and received no communication from them at which point she came to her solicitor seeking advice. The Complainant provided copies of texts exchanged with the Respondent regarding the conditions under which she would work with him in which she indicated that she was prepared to work for the same terms and conditions. He indicated the revised terms were to commence on 1st August 2019. The Complainant believed that it was the text that confirmed to her that he was not prepared to employ her under the same terms and conditions of employment. The representative contended that TUPE did apply and that she was entitled to the same terms and conditions of employment and that if he was not willing to take her on she was entitled to minimum notice of eight weeks and that he had breached the TUPE Regulations; that she was dismissed without good reason; and compensation was sought under the various pieces of legislation. |
Summary of Respondent’s Case:
The Respondent stated that he received a letter from the HSE telling him that he had obtained the contract. The previous contractor informed him that he would have to take on the Complainant on account of TUPE. Before the changeover he had exchanged in correspondence with the previous contractor who said that he must take on the employee and the same terms and conditions. It seemed they have a different meaning of TUPE as between this Respondent and the previous contractor. His position is that if he took on part of a company then he would have to take the employees. However, this was a contract and it was a totally different contract. He was invited to tender for that contract, he priced it for less hours and he received the contract on the basis of his tender. The Respondent provided a previous decision of an Adjudicator involving his company where in ADJ-00015992 it was found that the transfer of a contract between one cleaning company and the other did not constitute a transfer of undertaking under TUPE and a related claim for redundancy and minimum notice did not succeed in that case. Asked by the Adjudicator, the Respondent said that he had not been informed of any appeal of that Adjudicator decision which was issued on 16th December 2019. The Representative of the Complainant confirmed she was aware of the AO Decision cited by the Respondent. |
Findings and Conclusions:
The Respondent has correctly asserted that there was no transfer of undertakings concerning the Complainant from the previous service provider to the Respondent. The position regarding the transfer of such undertakings i.e. providers of contract cleaning services was well set out in ADJ-00015992 and related cases as late as December 2019. There is no legal precedent in this jurisdiction which can be presented to indicate that the relevant authorities disagree with Cannon v Noonan Cleaning Ltd and CPS Cleaning Services Ltd as far back as 1998, reinforced by Dolan v Flannery Cleaning Services & Corporate Cleaning Services Ltd [2007]. The relevant decisions in this jurisdiction are underpinned by the Decision in ‘Suzen’. Central to these Decisions and Determinations is what is being transferred and in particular the absence of assets or economic activity. The conclusions on this point are set out in more details in ADJ-00024265. Following from the findings that there was no transfer of undertakings from the previous service contract provider to the Respondent in this case, it follows that the complaints against the Respondent must fail. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 10 of the Transfer of Undertakings Regulations 2003 requires that I make a decision in relation to the relevant redress provisions of the Regulations
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 11 of the Minimum Notice and Terms of Employment Act 1973-2015 require that I make a decision regarding redress provision of that Act.
Section 7 of the Terms of Employment Act 1994 requires that I make a decision under the redress provisions of that Act.
Transfer of Undertakings Regulations 2003. The complaint brought by the Complainant under the Regulations is not well founded. Redundancy Payments Act 1967-2019 The appeal brought by the Complainant under the Redundancy Payments Act is disallowed. Unfair Dismissal Act 1977 The complaint brought by the Complainant under this Act is not well founded. Minimum Notice and Terms of Employment Act The complaint brought by the Complainant under this Act is not well founded. Terms of Employment Information Act,1994. The complaint brought by the Complainant under this Act is not well founded. |
Dated: 05-05-2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Transfer of Undertakings contract cleaning service provider. |