DECISION NO: DEC-E/2013/005
PARTIES
Mr. Jonas Narauskas
(Represented by Richard Grogan and Associates)
Vs
Rock Road Stone Company Limited
FILE NO: EE/2010/525
Date of issue: 5 February, 2013
1. Dispute
1.1 This dispute involves a claim by Mr. Jonas Narauskas that he was discriminated against by Rock Road Stone Company Limited on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to training, conditions of employment and other.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 13th of July 2010 alleging that the respondent had discriminated against him, on grounds of race, when he did not receive a contract of employment or Health & Safety documentation in a language which he understood. It is also submitted that the complainant was told to sign documents eventhough he didn't understand them. In addition it is submitted that he was described as an apprentice and paid accordingly, and that this was incorrect.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 27th of September, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 12th of October, 2012.
3. Preliminary issue - Transfer of Undertakings
3.1 On the day of the hearing, witness for the named respondent, Mr. Martin Gargan advised the hearing that there was an issue regarding a transfer of undertaking, in this case.
3.2 Mr. Gargan advised the hearing that the named respondent Rocks Road Stone Company Limited had transferred its business to Constructall Building Services Limited on 29th of January, 2010. The complainant submitted his complaint to the Tribunal on the 13th of July 2010 and had named the alleged transferor Rocks Road Stone Company Limited as the respondent in this complaint. Witness for the respondent, Mr. Gargan advised the hearing that this matter had been the subject of a number of findings by the Labour Relations Commission who had found that Rocks Road Stone Company Limited could not be the correct respondent in those matters as the respondent had transferred his business to another company on 29th of January, 2010.
3.3 The respondent, at the hearing stated that all employees, including the complainant, were transferred to the new company, Constructall Building Services Limited, from 29th of January, 2010. The respondent stated that a meeting was held on 22nd of December, 2009 where employees were informed of the proposed transfer and of the consequences of same. Mr. Narauskas did not attend the meeting. Further meetings with employee representatives took place on 18th and 21st of January 2010 and letters issued to all employees on 11th of January, 2010 advising them of the transfer and the implications. (Documentary evidence of these meetings and letters were submitted to the hearing).
3.4 The complainant's representative presented no counter argument to the respondent's submission that a transfer of undertaking had taken place as outlined.
3.5 The issue for decision by me in relation to this matter is whether or not I accept the evidence of the respondent that a transfer of the business took place from Rocks Road Stone Company Limited to Constructall Building Services Limited on 29th of January, 2010. In reaching my decision, I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as the evidence adduced at the oral Hearing.
3.6 The respondent advised the hearing that a transfer took place on 29th of January, 2010, the purpose of which was to outsource its requirements for skilled and manual labour to a new company, Constructall Building Services Limited. The respondent stated that he had made every effort to ensure that all employees understood that a transfer was taking place and the implications of same. The effect of such a transfer is that the rights and obligations of the transferor would transfer to the transferee on the relevant date, in this case the transfer is alleged to have taken place on 29th of January, 2010. The respondent provided documentary evidence that such transfer took place as outlined. In the instant case no evidence was presented to suggest that the transfer of undertaking did not take place at the relevant time. Having regard to the evidence adduced on this issue, I accept the respondent's evidence which indicates that Rocks Road Stone Company Limited engaged in a transfer of undertaking to Constructall Building Services Limited on 29th of January, 2010.
4. Decision
4.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I accept the respondent's evidence that a transfer took place on the 29th of January, 2010, and that Rocks Road Stone Limited is not the correct respondent in these matters.
_____________________
Orla Jones
Equality Officer
5th of February, 2013