EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
TU27-TU29-2014
APPEAL(S) OF:
Secto Services Limited - Appellant
against the recommendation of the Rights Commissioner in the case of:
Sean Tully - Respondent 1
Mindaugas Natkevicius - Respondent 2
Eduardas Sulcas - Respondent 3
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. McAveety
Members: Mr. T. O’Grady
Mr. O. Nulty
heard this appeal at Cavan on 29th October 2015
Representation:
Appellant(s) : Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
Respondent(s) : Mr. Matthew Jolley BL instructed by: Mr Colm Dunne, Bowler Geraghty & Company, Solicitors, 2 Lower Ormond Quay, Dublin 1
This case came before the Tribunal by way of an appeal by an employer against the decision of a Rights Commissioner References: r-136711-tu-13/SR, r-136723714-tu-13/SR, r-136730-tu-13/SR, r-136713-tu-13/SR, r-136725-tu-13/SR, r-136727-tu-13/SR, r-136787-tu-13/SR, r-136781-tu-13/SR, r-136789-tu-13/SR, r-136714-tu-13/SR, r-136724-tu-13/SR, r-136728-tu-13/SR, r-136709-tu-13/SR and r-136729-tu-13/SR.
The decision of the Tribunal was as follows:-
Background:
All three respondents took claims under the Protection Of Employees On Transfer Of Undertakings Regulations 2003 against four companies – O.C. Ltd., O.I.G.H. Ltd., I.S.S. Ltd. and S.S. Ltd. (otherwise known as the appellant in this matter). The respondents stated all or one of the four named companies were in breach of their rights and entitlements under Regulation 5 of the regulations. Each of the four companies denied the breaches.
It was established at the hearing that O.C. Ltd., O.I.G.H Ltd and I.S.S. Ltd. were part of the same group or legal entity – the O Group. All three respondents were employed as riggers / general operatives.
Respondent 1 – It was established at the hearing that he was employed by I.S.S. Ltd immediately prior to the termination of his employment from the 3rd October 2009 to the 22nd April 2013 and paid a monthly net salary of €1,805.00.
Respondent 2 – It was established at the hearing that he was employed by O.C. Ltd immediately prior to the termination of his employment from the 1st January2006 to the 22nd April 2013 and paid a monthly net salary of €1,885.18. (gross salary - €2,217.92)
Respondent 3 – It was established at the hearing that he was employed by I.S.S. Ltd immediately prior to the termination of his employment from the 27th October 2009 to the 22nd April 2013 and paid a monthly net salary of €1,931.13. (gross salary - €2,255.92)
By letter dated the 15th March 2013 from the O Group the respondents were informed of its:
“Maintenance Services Agreement with BT has been terminated from midnight on 2nd April 2013. This contract has been awarded to two separate services companies: (companies named).
This change of service provider will constitute a relevant transfer under the (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE)”.
In May 2013 a letter from the O Group to the appellant company enclosing a copy of a letter dated the 29th April 2013 was provided to the respondents referencing the respondents and others and specifies the appellant company as the transferee.
The respondents received a letter dated the 15th May 2013 from the appellant refusing to accept the application of the Regulations to the respondent.
The respondents then received letters from their respective employers – O.C. Ltd and I.S.S. Ltd. confirming the appellant’s adopted position and that redundancy did not apply to them.
The respondents never transferred to the appellant company.
The Rights Commissioner heard all parties in the matter and found the respondents were “unfairly dismissed by the appellant solely on the grounds of a transfer of undertakings as defined under the Regulation.” The Rights Commissioner found the appropriate redress was re-instatement.
The appellant appealed the decision is the Employment Appeals Tribunal.
At the appeal hearing before the Employment Appeals Tribunal both the representatives for the appellant company and the respondents read extensive legal submissions into the Tribunal record.
Appellant’s Position:
The appellant company maintains the communications contract they were awarded from the 22nd April 2013 differed than that provided by the O Group. The appellant company would no longer provide two of the four services originally provided by the O Group. On the 9th May 2013 the appellant wrote to the O Group informing them TUPE no longer applied in the circumstances. Included in the letter was a number of factual and legal points making their position clear.
The appellant company contends they were not in breach of the Regulation and the Rights Commissioner erred in his decision.
Respondent’s Position:
The respondent’s position is a transfer of undertakings took place, the appellant is the employer and the Rights Commissioners Decision should be upheld.
Determination:
The question to be answered in this matter is whether or not there was a transfer of undertakings for the purpose of the Regulations arising from the transfer of the contract for maintenance of the mobile communications infrastructure from the O Group to the appellant company.
The Tribunal have carefully considered the extensive legal submissions adduced by both representatives to all parties in this appeal and finds there was no transfer of undertakings took place as per the regulations of the Act.
Accordingly, the appeal under the Protection Of Employees On Transfer Of Undertakings Regulations 2003 is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)