EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Sanjay Balloo
- appellant TE167/2014
TU56/2014
against the recommendation of the Rights Commissioner in the case of:
Itsa Bagel Limited
- respondent
under
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. N. Ormond
Ms. E. Brezina
heard this appeal at Dublin on 26 January 2016
Representation:
Appellant(s) : In person
Respondent(s) : In person (Ms Peaches Kemp – company director)
The decision of the Tribunal was as follows:-
This case came before the Tribunal by way of the employee appealing the recommendations of a Rights Commissioner under the Terms of Employment (Information) Act 1994 to 2012 reference R-143678-TE-14/EH and the Protection of Employees on Transfer of Undertakings Regulations 2003 reference R-143470-TU-14/EH.
Summary of Evidence
The respondent company runs a café /restaurant business. The appellant gave evidence of commencing employment at the café in June 2004. The appellant’s employment transferred to the respondent company in January 2014. The appellant submitted that he did not receive a contract of employment from the respondent within two months of commencing his employment. The appellant also submitted that his supervisory role was diminished, his duties changed and his hours were reduced significantly after the transfer of his employment. The appellant claimed he was not afforded a four week consultation period prior to the transfer and was given three days to consider whether he would transfer.
The respondent director (PK) gave evidence of providing the appellant with a contract of employment which the appellant refused to sign. The appellant’s terms and conditions including his pay was maintained. The respondent submitted that a meeting was held with the employees of the café including the appellant on the 9 December 2013. The respondent took over the business on the 6 January 2014.
The HR manager (KK) obtained the history of hours worked going back five years from the original employer. The hours per week for the appellant averaged at thirty one hours.
Determination
The Tribunal carefully considered the evidence submitted by both parties. The Tribunal noted that the Rights Commissioners recommendation under the Terms of Employment (Information) Act 1994 to 2012 is dated the 13 October 2014 and the appellant filed the appeal with the Employment Appeals Tribunal on the 18 December 2014. In circumstances where the appeal was filed outside the six week period from the date of the Rights Commissioners recommendation the Tribunal has no jurisdiction to hear the appeal. The appeal under the Terms of Employment (Information) Act 1994 to 2012 fails.
Under the Protection of Employees on Transfer of Undertakings Regulations 2003 the Tribunal has a discretion or power to extend the time stipulated for appeal. The appellant gave evidence of submitting his appeal to the Labour Court inadvertently and when he received a letter from the Labour Court advising him of the error he submitted the appeal to the Tribunal. Having regard to the circumstances the Tribunal extend the time to file the appeal. Accordingly this Tribunal determines that it has jurisdiction to hear this appeal from the Rights Commissioner.
The Tribunal considered the evidence of the parties in relation to the appeal under the Transfer of Undertaking Regulations and is satisfied that the respondent had consulted the appellant prior to the transfer and in particular noted that a meeting took place with employees including the appellant on the 9 December 2013 four weeks before the transfer. The Tribunal further noted that the appellant remained on the same pay rate after the transfer on the 6 January 2014. In all the circumstances the Tribunal finds that the appeal under the Protection of Employees on Transfer of Undertakings Regulations 2003 fails and the recommendation of the Rights Commissioner is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)