EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Adeel Ansari -claimant UD792/2014
MN403/2014
against
Lodge Services Dublin Limited -respondent
&
Albany House
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Wallace
Members: Mr. W. O'Carroll
Ms. H. Kelleher
heard this claim at Limerick on 8th July 2015 and 29th September 2015
Representation:
Claimant: Mr. Tiernan Lowey B.L instructed by Mr. Andrew D'Arcy,
Andrew D'Arcy & Co, Solicitors, 22a Henry Street, Limerick
Respondent: Mr P.J. Mooney, Employment Law Advisory Services Limited,
Charles House, Albert Street, Eccles, Manchester, M30 Opw,
UK
Summary of evidence:
It was the claimant’s case that he was unfairly dismissed from his employment with the respondent company. It was the company’s case that a transfer of undertakings occurred in December 2013. The company disputed the date of notice as stated by the claimant on his claim form to the Tribunal.
The company provides security services to retail clients. The claimant commenced his employment with the respondent company as a retail security officer in July 2008 and his contract of employment was contained within the documents submitted to the Tribunal. The flexibility clause of the contract was opened to the Tribunal.
The claimant was based at a number of store locations throughout his employment but from June 2013 to November 2013 he was based at either the Roxboro or Castletroy locations in Limerick for Client A.
During September 2013, Client A informed the respondent company that it was putting the security contract out for tender. In October 2013 the respondent company was notified that Client A had decided to split the security contract between the respondent company and Company S on a geographical basis. The impact of this decision was that the respondent company lost a number of Client A’s stores in Limerick but gained two stores in the Dublin area. Company S was taking over the Limerick stores and therefore some six or seven of the respondent’s employees were transferring to Company S. Following a request for staff details from Company S, a transfer of undertakings document was provided by the respondent company.
It was the evidence of the Managing Director of the respondent company that a letter dated 18th November 2013 issued to the claimant informing him that his employment was due to transfer but that should there be suitable alternative employment within the respondent company it would be advertised and the claimant was free to apply for any such positions. However, there were little alternatives available in the Limerick area as the respondent company had only a small workforce in that area. It was the company’s belief that the employees were no longer employed by the respondent company after the 30th November 2013. However, following email contact from the claimant, to which the Managing Director responded by email dated 16th January 2014, it became obvious that the claimant had not transferred and the respondent company issued him with a P45 in January 2014.
During cross-examination the Managing Director accepted that the claimant had also performed the role of store detective on a number of occasions. He acknowledged that the claimant had worked in a number of store locations prior to June 2013 but he added that a gentleman’s agreement exists in security companies that an employee only qualifies to transfer when they have been based in one store for three months or more.
It was put to the Managing Director that the claimant will dispute that the transfer of undertaking legislation was engaged and that in fact only one employee transferred (SS) but this was disputed by the witness. It was also put to the Managing Director that the claimant did not receive the letter dated 13th November 2013 or any other communication preceding the alleged date of transfer (1st December 2013), nor spoken to by the Operations Manager. As a result he wrote emails to the company on two occasions in December 2013 enquiring as to his status in the company as he had not received a roster. In addition he also wrote on 13th January 2013 stating that it was 43 days since he had heard anything from the company. The Managing Director replied that he communicated with the claimant on the 16th January 2014 and that there was also a conversation with the Operations Manager in the intervening period.
The Managing Director accepted that the company advertised for retail security officers in December 2013 but he explained the reason for this is because the company holds curriculum vitaes on file on an ongoing basis.
It was put to the witness that the claimant wanted to remain in the employment of the respondent company as he liked the location flexibility it offered. The Managing Director replied that he believed the claimant did not want to transfer because the respondent company had facilitated the claimant’s work with another employer and this was the underlying reason why the claimant did not want his employment to transfer. It was the company’s case that the claimant became a full-time employee of this other company.
The Operations Manager at the time of these events gave evidence that he recollected the period in question and that it was during October 2013 that the respondent company became aware of the new contract arrangements with Client A. It was his evidence that he informed the affected employees of the transfer in early November during a series of store visits.
The claimant subsequently contacted him at the end of November complaining that he was unhappy to transfer to Company S as it could jeopardise his employment with another company. The Operations Manager told him there would be no issue as long as he fulfilled his 20 hours with Company S.
When the claimant emailed on the 2nd December 2013 seeking his rostered hours the Operations Manager contacted him by telephone and reminded him that his employment was transferring to Company S but the claimant was unhappy about this. The Operations Manager told him that there was no alternative work with the respondent company in the Limerick area.
It was the evidence of the witness that all of the employees transferred with the exception of TK. TK worked two days at a location for Client A and two days for another retail client. Whether he transferred or remained in the employment of the respondent company he was going to lose two days work so he made the decision to continue his employment with the respondent company. He continues to work two days per week with the exception of when he covers for other employees on annual or sick leave.
Claimant’s Case
The claimant gave evidence. He worked part time for 2 different security firms. Initially he worked as a uniformed security guard for the respondent. Later he was asked to work as a store detective and in this role he travelled to a number of stores outside Limerick.
In September 2013 the claimant was not informed that the contract with Client A had been lost. He received neither a letter nor a phone call telling him of the loss. He did hear whispers of a transfer but was confident of retaining his position with the respondent. He worked in all the respondent’s contracted stores and he was the senior employee. He expected to move to another store.
The claimant found out that his employment has ended on Friday 29th November 2013 when he got the roster for the following week and he had been given no work. On Saturday he phoned the office administrator who asked him if he had transferred to Company S. He replies no. On 2nd December 2013 the claimant phoned the office again and was told he had transferred to Company S and that the respondent had no work for him.
The respondent had on past occasions not rostered the claimant for periods of weeks but always rostered him again. He expected to be rostered again.
The respondent did not inform him when the contract with Client A was lost. The floor staff in the store told him. The claimant was paid outstanding holiday pay.
The claimant established loss.
Determination
The Tribunal carefully considered the evidence adduced and the submissions made in this case. It is accepted that the respondent lost the contract to provide security services to Client A. For a transfer of undertaking to take place the respondent would have to fulfil the requirements of Section 8 of S.I. 131 of 2003 European Communities (Protection of Employees on Transfer of Undertakings). The Tribunal is not satisfied that the respondent met this requirement. An informal meeting at the end of the claimant’s normal shift does not suffice for consultation with him. Further the claimant denies receiving the letter dated 13 November 2013 from the operations manager but the respondent could not offer documentary evidence that he had.
As a transfer of undertaking did not take place the Tribunal finds that the termination of the claimant’s employment was an unfair dismissal. The claim under the Unfair Dismissals Acts 1997 to 2007 succeeds and the claimant is awarded the sum of €8,000.00.
The Tribunal finds that the claimant knew in November 2013 that the respondent had lost the contract with Client A and he was likely to know about the letter of 13 November 2013. Therefore he was on notice of the termination of his employment. The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)