TE116/2014, TU49/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                     CASE NO.

Jaroslaw Kostka

(appellant)                                                                                                                  TE116/2014

                                                                                                                                    TU49/2014                                                              

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

ASF Recruitment Limited (respondent)

under

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012

PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Mr. P. O'Leary B L

Members:       Mr F. Cunneen

                        Ms. P. Ni Sheaghdha

heard this appeal at Dublin on 9th October 2015

Representation:

_______________

Appellant(s) :             Mr. Blazej Nowak, Polish Consultancy Enterprise, 107 Amiens Street,                        

Dublin 1                    

Respondent(s) :          Mr Joe Bolger, Esa, Novum Building, Clonshaugh Ind. Est.,

                                    Dublin 17

The decision of the Tribunal was as follows:

This case was heard in conjunction with TE131/2014 and TU51/2014.

There was a Transfer of Undertaking of employees from the respondent company to company A in January, 2013. The appellant was on sick leave from 4^th December 2012 and was not on the list of employees transferred nor was he made aware that a transfer was taking place. The respondent accepted that there was a Transfer of Undertaking in relation to the appellant and only became aware of the appellant by letter on 11 January 2013. The respondent wrote to ITI on 16 January 2013 requesting the appellant’s particulars. ITI refused to give any information on the appellant citing data protection reasons. Following correspondence between the respondent and the appellant’s representative, a contract was issued to the appellant in March 2013.  

The appellant’s representative submitted that while the respondent issued a contract of employment to the appellant, it did not fully comply with Section 4 of the Terms of Employment Act.

The Tribunal heard that due to his injury the appellant will be unable to return to the type of work he had been previously assigned.  

In relation to the Transfer of Undertaking it was submitted that the respondent had breached Section 8 of the Transfer of Undertakings Regulations in relation to the 30 day notification period. It was also indicated that the appellant’s conditions of employment had changed, inter alia, it was stated that he could be required to work within the 32 counties instead of Dublin only.

Determination

Based on the evidence adduced, the Tribunal awards the appellant €692 being two weeks’ pay under the Protection of Employees on Transfer of Undertakings Regulations 2003. The Tribunal also awards the appellant €346 under the Terms of Employment Act 1994 to 2012, making a total award of €1,038.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)