DWT258

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046190 (CA-00057071-004)

BACKGROUND:

The Worker appealed the Adjudication Officer's Decision to the Labour Court on the 09 July 2024. A Labour Court Hearing took place on the 14 February 2025.

The following is the Labour Court's Decision

DECISION:

This is an appeal by Adrian Doroghi against the decision of an Adjudicator Officer made in relation to a complaint against his former employer, Synergy Security Solutions Limited, under the Organisation of Working Act, 1997 (The Act).

The Adjudication Officer found that the complaint was wrongly submitted against the Respondent and that the complaint under the Act was not well founded.

A hearing of the Labour Court was held on 14 February 2025 in Dublin. Adrian Doroghi was assisted with a Court Interpreter. In line with the customary practice of the Court, Adrian Doroghi is referred to below as “the Complainant” and Synergy Security Solutions Limited as “the Respondent”.

Preliminary Matter – Was the correct respondent impleaded?

A preliminary matter in relation to the Court’s jurisdiction to hear the substantive complaint was raised regarding whether the correct Respondent was impleaded on the WRC complaint form.

Preliminary Matter - Position of the Complainant

The Complainant worked for the Respondent as a security officer from 3 September 2017 until 1 March 2023 when his employment transferred under a transfer of undertakings to a different company.

The Complainant tried to resolve issues relating to his employment before the transfer of his employment, but the company did not properly engage with him.

Regulation 8(6) of the S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 is clear regarding the duty of the employer/transferor:

"(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and

(d) any measures envisaged in relation to the employees." (emphasis added)

Regulation 8(7) further underlines the responsibility of the employer (transferor) in such situation:

" (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations."

In Radek Velicka - v - OCS One Complete Solution LTD, TUD164 the Labour Court concluded that:

"Regulation 8(6) provides that where there are no employee representatives, each of the employees concerned must be informed of the above matters in writing where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer. The Regulations place an obligation on the transferor to inform its employees concerned, and on the transferee to inform its own employees. There was no obligation on the transferee (in this case the Respondent) to inform Viking Security Limited’s employees of the transfer.".

No information was provided by the employer (transferor) to the Complainant about relevant details of the transfer, especially with reference to the economic implications.

While the Respondent relies in Article 3(1) of Council Directive 2001/23/EC to say that all liabilities passed to the transferee on 1 March 2023, the date of the transfer, Article 5(2)(a) of Council Directive 2001/23/EC provides as follows:

“…notwithstanding Article 3(1), the transferor's debts arising from any contracts of employment or employment relationships and payable before the transfer or before the opening of the insolvency proceedings shall not be transferred to the transferee…”.

At the time the transfer was announced the Complainant was seeking payment for his entitlements under the Act from the Respondent. Any duties or obligations regarding the economic aspect of the transfer, including his entitlements under the Act, did not pass on to the other entity. The Respondent is liable for the present claim.

Preliminary Matter - Position of the Respondent

The Complainant left the employment of the Respondent on 1 March 2023 under a transfer of undertakings. He submitted a complaint against the Respondent to the WRC on 12 June 2023 some two and a half months later, at a time when he was an employee of another company, not associated with the Respondent.

The Complainant has wrongly submitted his complaint against his previous employer as opposed to his new employer.

The Respondent relies on J Donahue Beverages Limited and Charlene Murphy TUD185, in which the Labour Court supported the position thought the transferor is effectively released of all liabilities, and any failure to comply with statutory obligations passes to the transferee employer.

In this case it is submitted that in transposing EU Directive 2001/23/EC into domestic law Article 3(1) was transposed by Regulation 4(1) of the Regulations, however, the second paragraph of Article 3(1) which includes an optional provision permitting Member States to derogate from the strict terms of the first paragraph of Article 3 one was not transposed into domestic law.

It is submitted that following a transfer of undertakings within the meaning of the Regulations “the liability for the transferor’s rights and obligations arising from a contract employment existing on the date of the transfer” rests with the transferee. Regulation 4(1) provides that any remedy for the failure of an employer, as transferor, to fulfil its obligations under Regulation 8 can only be sought by the Complainant against the transferee.

In light of the above, it is submitted that the Complainant incorrectly named the Respondent in this case. While this is unfortunate for the Complainant, the Regulations are clear that the correct respondent in this case is the transferee rather than the transferor.

Preliminary Matter – Deliberations

The preliminary matter for consideration by the Court is whether the incorrect Respondent was impleaded on the WRC complaint form.

It is accepted that the Complainant transferred employment from the Respondent to another named entity on 1 March 2023 under a transfer of undertakings. 

EC Directive 2001/23/EC was transposed into Ireland as the European Communities (Protection of Employees on Transfer of Undertakings) Regulations SI 131/2003. Article 3(1) of EC Directive 2001/23/EC, which was transposed as Regulation 4 of S.I. 131/2003, provides that:

“The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.”

Article 3 of EC Directive 2001/23/EC also provides that:

“Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.”

The provision that member states may provide that the transferor and the transferee are jointly liable for employment-related obligations was not transposed into SI 131/2003.

Article 5 (2) of EC Directive 2001/23/EC provides in relevant part that:

“2. Where Articles 3 and 4 apply to a transfer during insolvency proceedings which have been opened in relation to a transferor (whether or not those proceedings have been instituted with a view to the liquidation of the assets of the transferor) and provided that such proceedings are under the supervision of a competent public authority (which may be an insolvency practitioner determined by national law) a Member State may provide that:

(a) notwithstanding Article 3(1), the transferor's debts arising from any contracts of employment or employment relationships and payable before the transfer or before the opening of the insolvency proceedings shall not be transferred to the transferee, provided that such proceedings give rise, under the law of that Member State, to protection at least equivalent to that provided for in situations covered by Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (1), and, or alternatively, that,

(b) the transferee, transferor or person or persons exercising the transferor's functions, on the one hand, and the representatives of the employees on the other hand may agree alterations, in so far as current law or practice permits, to the employees' terms and conditions of employment designed to safeguard employment opportunities by ensuring the survival of the undertaking, business or part of the undertaking or business”.

The Complainant’s representative acknowledged that Article 5(2)(a) of Council Directive 2001/23/EC - which applies in the case of insolvency proceedings in relation to the transferor - is not relevant to the within complaint as there were no insolvency proceedings in being in relation to the transferor at the time of the transfer. 

At the time the transfer was announced, the Complainant submits that he was seeking payment for his statutory entitlements from the Respondent. The Complainant contends that in circumstances where he raised alleged breaches of the Act with the Respondent before the transfer date, any liability for those breaches should remain with the Respondent and not transfer to the transferor

The Complainant submits that no information was provided to him by the Respondent (the transferor) regarding any economic implications of the transfer of his employment to another entity (the transferee), as is required under SI 131/2003. He was not made aware that liabilities passed to the transferor. 

While the Complainant may not have been aware that any liabilities relating to his contractual terms passed to the transferee, the effect of Regulation 4 of S.I. 131/2003 is that the Respondent named in the within proceedings was released of all employment related liabilities on the date of the transfer, and any failure to comply with statutory obligations passed to the transferee employer.

As a result, any complaint relating to an alleged contravention of the Act falling within the relevant time limits must be brought against the transferee.

It follows that when the Complainant submitted his complaint against the Respondent in the within proceedings, he identified the wrong respondent.

Finding

Rule 54 of the Labour Court Rules 20224 states as follows:

“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.”

In this case, the Court finds that the Complainant has named the incorrect respondent in his complaint. In these circumstances, the Court cannot proceed to hear the substantive matter.

The appeal is rejected, and the Decision of the Adjudication Officer is upheld accordingly.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
25th February 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Amy Leonard, Court Secretary.