EMPLOYMENT APPEALS TRIBUNAL
CLAIMS(S) OF: CASE NO.
UD1323/2013
Michael Brady RP629/2013
– claimant (employee) TU36/2014
against
Sinead McNamara
- respondent (employer)
and APPEAL OF:
Sinead McNamara
- appellant (employer)
against the recommendation of the Rights Commissioner in the case of:
Michael Brady
– respondent (employee)
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
UNFAIR DISMISSALS ACTS 1977 T0 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr. P. Casey
Ms. P. Doyle
heard this appeal at Cork on 26th August 2014
and 15th January 2015
Representation:
_______________
Employee: In Person
Employer: Mr Terence O'Sullivan, Terence J O'Sullivan, Solicitors, 6 Lapps Quay, Cork
This case came before the Tribunal by way of direct claims by the claimant (employee) under the Unfair Dismissals Acts 1977 to 2007 and the Redundancy Payments Acts 1967 to 2007 and by way of an appeal by the appellant (employer) against the decision of the Rights Commissioner (ref: r-134141-tu-13JOC) under the Protection of Employees on the Transfer of Undertakings) Regulations 2003.
At the outset the employee withdrew his claim under the Unfair Dismissals Acts 1977-2007 and confirmed that he was proceeding with his claim under the Redundancy Payments Acts 1967-2007.
The employer was appealing against a decision of the Rights Commissioner, dated 23rd May 2014 which held as follows:-
That the employer had breached regulation 8 of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003.
That the employer was responsible for termination of the employee’s contract of employment.
That the employee had been made redundant in accordance with regulation 2 of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 and accordingly was entitled to a redundancy payment.
Preliminary Issue
A hearing on a preliminary issue was heard by this Division of the Tribunal on 26th August 2014 and a determination was delivered in respect of same on 17 November 2014 (Case No. TU36/2014 to the following effect:-
(1) That the employer is an economic entity for the purposes of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 – Statutory Instrument 131/2003.
(2) That there was a relevant transfer for the purposes of European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003.
The Tribunal accordingly now proceeds to determine the hearing on the substantive issues.
Substantive Issue
The employee’s case
The employee gave evidence that he commenced his employment as a court messenger with the then Sheriff for County Cork on 23rd July 1987 and that this employment transferred in 1995 to MOD, the former Sheriff for County Cork under the Transfer of Undertakings Regulations 1980. He told the Tribunal that on 13th February 2013 he received what he referred to as a letter of undertaking from MOD informing him that his employment would transfer on the 16th February 2013 to the successor of MOD by virtue of the Transfer of Undertakings Regulations 2003. He said he was led to believe by MOD that he would be transferred to the new County Sheriff and at no time was it indicated to him that he might have difficulty with the change in employer.
He said that there was essentially no consultation with MOD rather he was just given the letter. (The Tribunal notes that the relevant information could not have been provided on 13th February 2013 as MOD did not know at that time who his successor was to be and would not have had the information necessary in order for him to assess whether a transfer would occur or not as this would depend on how his successor planned to run the office of Sheriff – all that he could have known at this point was that the contract was to be awarded to a successor.)
The employee said he had some discussions with the employer following which she wrote to him on 25th April 2013 stating that his employment with MOD had terminated in mid-February 2013. He said the employer wrote to him on 7th May 2013 stating that his contract had come to an end on 13th February 2013 and stating that MOD had not consulted with her. He said the employer told him that she “had no work” for him.
The employee said that the employer had discussed with him difficulties of the job taking his age into account and difficulty with insuring him. The employee was adamant that his age posed no difficulties for him with the job as he was usually accompanied by the Gardai in any event.
It is the employee’s position that either the employer or MOD is liable to him for the redundancy payment.
He said MOD gave him his P45 in April 2013.
The employer’s case
SMcN (employer) told the Tribunal that she applied for the office of Sheriff for County Cork pursuant to an advertisement of the post. On or about 13th February 2013 she received a letter stating that she had been short-listed for the appointment and shortly thereafter she received a telephone call from the Minister’s office stating that the post was hers; the appointment was announced at Cabinet on 26th February 2013 and she was appointed on 1st March 2013.
She told the Tribunal that the files from MOD, the former Sheriff, were taken back by the Revenue Commissioners on 15th February 2013.
On the 28th February 2013 she said that she had a 15-minute meeting with MOD and this was the first contact. He could not provide her with contracts of employment for his staff and essentially all she got was a list of names. Neither she nor MOD could have engaged with each other prior to 13th February 2013 as this was the first indication she had that she would be appointed the Sheriff for County Cork.
SMcN told the Tribunal that the employee worked part-time and that in any event she would not have had work for him until May 2013 when the Revenue warrants were given to her.
She did not take over the premises used by MOD for the work of the Sheriff, she took some of the computers because she intended using the same IT services, took a photocopier and took on about four members of staff of the former Sheriff.
When she knew she was to be appointed as Sheriff she took independent legal advice as to whether TUPE applied and her advice was that it did not. Nonetheless she had some discussions with the employee regarding health and safety issues of the job taking into account his age and difficulties in obtaining insurance cover for him.
Regarding any failure to comply with Regulation 8 she was never in a position to comply with this due to the date of her appointment and before knowledge of her appointment she had no way of knowing that she would be the new Sheriff for County Cork.
Her position was that the employee’s contract had been terminated before she had been appointed as Sheriff and that she had not been provided either with a contract of employment nor contractual details of the employee by MOD.
It was put to the Tribunal by the legal representative for the employer to consider whether relief under the Redundancy Payments Acts or under the Unfair Dismissals Acts was available to the employee taking into account that he was long past normal retirement age.
Determination on alleged Breach of regulation 8 of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003:
Regulation 8 requires the information listed in subsection (1) to be provided by the transferor to the employees or their representatives where reasonably practicable not later than 30 days before the transfer is carried out. A similar obligation is placed on the transferee to provide this information where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.
The Tribunal finds that by the time the State had appointed SMcN as Sheriff for County Cork there was no opportunity for her to comply with the regulation 8 obligation either within 30 days or otherwise before any transfer of undertakings occurred.
The Tribunal finds on the facts of this case it would be irrational and unreasonable to hold that there was a breach of regulation 8 by the employer. Accordingly the appeal is allowed and the Tribunal sets aside the decision of the Rights Commissioner dated 23rd May 2014.
The Tribunal notes the position under the Regulation 13 of 2006, the UK equivalent of Regulation 8. See G Allen and Others v Morrisons Facilities Services Ltd [2014] (Appeal No UKEAT 0298/13) where the court held that the relevant obligation owed to affected employees of the transferor is imposed on the transferor and that an Order can only be made against a transferee if the Tribunal finds the complaint against the transferor well founded and the transferor shows that the transferee failed to perform their obligations under Regulation 13(4).” The court went on to hold that there is no “independent cause of action which can be pursued” by claimants against transferees….”.
Determination on the Appeal of Orders 2 and 3 of the Decision of the Rights Commissioner dated 23rd May 2014 and the Claim under the Redundancy Payments Acts 1967-2007:
The decision of the Rights Commissioner dated 23rd May 2014 is as follows:-
That the employer was responsible for termination of the employee’s contract of employment, and that the employee had been made redundant in accordance with regulation 2 of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 and accordingly was entitled to a redundancy payment.
As the Tribunal had already determined in Case No. RP82/2014 that the employee’s contract had been terminated by the former Cork County Sheriff and that his claim for redundancy against the former Cork County Sheriff had succeeded the Tribunal must allow the appeal and the Tribunal sets aside the decision of the Rights Commissioner dated 23rd May 2014.
Having considered the evidence and the submissions of the parties the Tribunal records the following findings:
- That MOD, the former Sheriff for County Cork, failed to pursue the issue of transferring the employee across to the employer other than to simply assert to the employee that TUPE did apply.
- The failure of MOD to furnish contractual details for the employee meant that the employer was not in a position to ascertain whether the employee was subject to an express clause (oral or written) that he would be required to retire at 65 years of age which when he commenced in 1987 would have been the norm. In the absence of this the Tribunal can only conclude that the retention of the employee by MOD well beyond retirement age was not a contractual right or obligation that could be transferred to the employer.
- That the employee’s contract had terminated prior to the appointment of the employer as County Sheriff for Cork and that the employee was claiming redundancy for a period ending prior to the appointment of the employer.
- That MOD failed to make any or any meaningful efforts to secure the transfer of the employee to the employer.
- That MOD failed to consider and discuss with the employee that there could be difficulties for his continued employment with any new Cork County Sheriff in circumstances where the employee was well past what is considered to be an age when workers may choose to and do normally retire, that there may be health and safety issues and that it may be difficult to get employer’s liability in respect of the employee.
- That MOD failed to discuss with the employer any possible difficulties for the continued employment of the employee but rather left him to fend for himself.
- At the time MOD asserted by letter to the employee that he would be transferring to whoever was appointed as the new Cork County Sheriff all that could be said with any certainty is that there may be a transfer of undertakings as if the employer had only taken over the contract no transfer of undertakings would have occurred. This assertion had the potential to act to the detriment of the employee as he was led to believe everything would be ok.
- That the issuing of a P45 by MOD to the employee in April 2013 indicated an acceptance by MOD that the employee had not transferred to the employer.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)