EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
TU37/2014
WT49/2015
PW313/2014
APPEALS OF:
Seán Ó Fearghail
against the recommendation of the Rights Commissioner in the case of:
SDC South Dublin County Partnership
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
ORGANISATION OF WORKING TIME ACT, 1997
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr W. Power
Mr P. Trehy
heard this appeal at Dublin on 8th October 2015
Representation:
Appellant:
Ms Lorraine Walsh, Meath CIS, Floor 2, 1 Canon Row, Navan, Co Meath
Respondent:
Ms Roisin Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an appeal by the employee against the decisions of the Rights Commissioners Ref: r-140842-pw-13/JT, r-140843-wt-13/JT and r-136907-tu-13/DI.
Determination:
The division of the Tribunal has carefully considered the oral evidence and supporting documentation provided in the course of this hearing.
The Appellant has appealed a number of matters which were heard before the Rights Commissioners and in particular has appealed a finding under the European Communities (Protection of Employees on Transfer of Undertakings) Regulation 2003 made on the 5th June 2014 and two other decisions under the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997 which were finalised on the 22nd of September 2014.
The Appellant commenced his employment in and around July 2011. His position was that of a FÁS team leader and his position was remunerated directly by the Department of Social Protection. The Appellant was employed within the C.P.L.N. Area Partnership in this position and his role was part of a national programme for assisting long-term unemployed.
There can be no doubt that C.P.L.N. Area Partnership was somewhat remiss in not providing the Appellant with a contract of employment when he commenced his employment. This oversight ultimately would have knock-on consequences though the lack of contract did not prevent the Appellant from doing his day-to-day work. The fact that this was intended to be a contract of indefinite duration does not seem to be in doubt. Additionally the Appellant’s unquestioned practice was to start his working day at 8.00 am and work through to 4.00 pm with a lunch break included.
It is common case that there was (readily available) in the workplace a document described as the C.P.L.N. Area Partnership staff handbook and the Appellant has made the case that the terms contained therein were the terms and conditions applicable to his contractual position. Of significance were the very favourable sick pay terms contained in this staff handbook.
Towards the end of 2012 and into the early months of 2013 a number of Bodies including C.P.L.N. Area Partnership amalgamated into the Body ultimately known as the South Dublin County Partnership (the Respondent herein). The S.D.C.P. became the Appellant’s employer by a process of transfer of undertaking and the legal obligation on the Respondent was to preserve the Appellant’s terms and conditions such that his position remains unchanged from before to after the transfer is effected.
In the run up to the transfer and as part of an acknowledged and open process of due diligence and TUPE the Appellant was provided with no less than two proposed contracts of employment. The Tribunal recognises some concern would seem to have existed in the Appellant‘s mind in so far as the contract purported to give rise to a fixed term contract. At the time nothing was done about amending the contract and the Appellant opted not to sign the contract of employment. The Respondent witness (L’ON) said in evidence that the contracts were deemed to be the basis for the contractual relationship between the parties if no issue was raised in connection with same. From the Appellant’s perspective however things came to a head when he discovered the said unsigned contract of employment was being held on his personnel file and in particular he was concerned that certain of the terms contained therein were significantly different to his prevailing terms and conditions.
A number of witnesses gave evidence to the effect that there was a general concern over these proposed contracts, in particular the description of “Fixed Term” although the Respondent conceded that this was and always had been an incorrect description. Another concern was the hours expected to be worked per the terms of the contract although the uncontested evidence for the Appellant and all the other FÁS team leaders was that the hours of work did not change at all after the Transfer of Undertakings had happened.
The matter which triggered the most concern to the Appellant was the number of recognised and allowable sick days (15). The Respondent gave evidence to the effect that the C.P.L.N. Area Partnership staff handbook which allowed 30 days was never properly applicable to the Appellant’s contract of employment in this regard. The Appellant’s along with his comparative FÁS team leader’s remunerative terms and conditions were dictated by the Department of Social Protection and whatever the Department deemed applicable took precedence over any more localised terms and conditions which (might) apply to other employees in the workplace. It was explained to the Tribunal how in this workplace different classes of people came to be employed in different ways and under different pay structures depending upon who was funding the positions.
The Tribunal heard a number of witnesses confirm that they knew or could reasonably be expected to know that the Department of Social Protection terms and conditions (even where some less favourable) would apply.
It is noted that the Appellant in the course of his evidence indicated that he left the workplace in and around August 2013 and this arose out of workplace pressures and issues of bullying which were not elaborated upon, the Appellant has not returned to the workplace and indeed appears to have found alternative employment though he has never tendered his resignation.
In dealing with the appeals from the Rights Commissioners the Tribunal finds the following:
Under the Organisation of Working Time Act, 1997 the employer provides the Bank Holidays would be paid once the Appellant returns to work.
Under the Payment Of Wages Act 1991 the Appellant failed to prove that he notified the Respondent of his intention to appeal pursuant to Section 7 (2) (b) of the Payment Of Wages Act 1991. Therefore the Tribunal has no jurisdiction to hear such an appeal.
Under the European Communities (Protection of Employees on Transfer of Undertakings) Regulation 2003 the Tribunal finds the Appellant has not made out his case and the appeal fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________ (CHAIRMAN)