TU57/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

Brinks Ireland Limited – appellant                                                               TU57/2013

V

Roman Protsenko – respondent

against the recommendation of the Rights Commissioner in the case of:

Roman Protsenko

V

Brinks Ireland Limited

under

PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr C. Corcoran B.L.

Members:       Mr J. Horan

Mr A. Butler

heard this appeal at Dublin on 16th January 2015

Representation:

_______________

Appellant(s):              Mr Brian Dolan

Peninsula Business Services (Ireland) Limited, Unit 3,

Ground Floor, Block S, East Point Business Park, Dublin 3

Respondent(s) :          Mr Richard Grogan

                                    Richard Grogan & Associates

                                    16-17 College Green, Dublin 2

This case came before the Tribunal by way of an employer appealing the recommendation of a Rights Commissioner under the Protection Of Employees On Transfer Of Undertakings Regulations 2003, ref: r-129444-tu-13JW.

The decision of the Tribunal was as follows:-

The appellant’s employment as a security guard transferred from Company A to Company B on 5^th October 2012. Following the transfer the claimant was not paid his night premium or his full Sunday premium as per his previous terms and conditions. His holiday year was changed from April to March to January to December in line with Company B’s holiday year. The appellant brought claims to the Rights Commissioner Service under the Payment of Wages Act, 1991, the Organisation of Working Time Act, 1997, and the Protection of Employees on Transfer of Undertakings Regulations 2003. The employer paid the outstanding wages to the appellant. The Rights Commissioner awarded the appellant €750 under the Organisation of Working Time Act, 1997. In total the appellant received €3,632.00 from his employer.

The appellant argued that changing his holiday year contravened section 2 of the Organisation of Working Time Act, 1997: “leave year” means a year beginning on any 1st day of April. This could result in time constraints should he wish to make a claim under this Act.

The appeal before the Tribunal is taken under the Protection of Employees on Transfer of Undertakings Regulations 2003. The Rights Commissioner awarded €5,000.00 compensation to appellant due to the employer’s failure to comply with Regulation 4(2) of said Regulations. Regulation 4(2) states:

Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Determination:

Having considered the submissions of both parties the Tribunal considers that the employee was adequately remunerated. The issue of the point raised in regard to the leave year was hypothetical and did not arise in this case and no loss arose in this case. In making this decision the Tribunal is mindful of the case of Cunningham v Intel Ireland Ltd [2013] IEHC 207 where it stated that ‘all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances’. The Tribunal does not believe that any such special circumstances arise in this case.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)