EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Colm McInerney -appellant X UD1538/2012
TU63/2012
and
Sean Treacy -appellant Y UD1540/2012
TU64/2012
against the recommendation of the Rights Commissioner in the case of:
G4S Secure Solutions (Ireland) Limited
-respondent A
and
Synergy Security Solutions Limited
-respondent B
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003 and
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr. W. O'Carroll
Mr F. Dorgan
heard this appeal in Limerick on 26 January and 14 April 2015
Representation:
Appellants: Mr Gerard Kennedy, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent : Ms Mairead Crosby, IBEC , for respondent A
No professional legal representation listed for respondent B
These cases came before the Tribunal by way of appeals by employees against the recommendations of a Rights’ Commissioner references ud96288/10/Mr, ud96289/10/MR,
tu96291/10/MR, and tu96292/10/MR.
This order should be read in conjunction with PW716/2012.
At the time of the initial hearing the appellants were employees of respondent B. They are appealing a recommendation by a Rights Commissioner which stated inter alia that their employment with respondent A which ceased on 30 June 2010 did not transfer under the European Communities Regulations 2003 (aka Tupe) to respondent B. Since they have not been dismissed from respondent B it follows that their unfair dismissal claim must be against respondent A.
According to respondent A it neither dismissed the appellants in any form and maintained they transferred under the above regulations to respondent B. The status of these appellants vis-à-vis the respondents were in dispute.
Appellant X gave brief evidence to the Tribunal most of which related to his case under the Payment of Wages Act, 1991. In essence he claimed that respondent B has short changed him by several thousand euro. He based and compared that amount on his previous work with respondent A compared to his remuneration with that respondent and his current employer.
This witness also maintained his employment and all its entitlements transferred from his former employer to respondent B.
The determination of the Tribunal was as follows:
The Tribunal considered the positions of all sides and the common and distinguishing aspects of both appellants’ cases. The Tribunal gave very lengthy consideration to the different prongs of the case. It was felt that the second employer could not be responsible for cleaning work and conditions when it had only taken over the security element of a contract that had previously encompassed both security and cleaning. However, it was felt that greater detail could have been clarified to the employees going from one employer to another from one working week to another. Allowing the appeals against Rights Commissioner Recommendations tu96291/10/MR and tu96292/10/MR the Tribunal awards Appellant X and Appellant Y the sum of €4,000.00 (four thousand euro) each to be paid by Respondent B under the Protection of Employees on Transfer of Undertakings Regulations, 2003. As the Tribunal makes no further award regarding these parties the related appeals (ud96288/10/MR and ud96289/10/MR) under the Unfair Dismissals Acts, 1977 to 2007, fall.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)