ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002541

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 29/06/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

This is a complaint about the absence of consultation during a transfer of undertakings. The only information received by the complainant was from the transferee. The transferor did not provide any information or a meeting and the employees did not have a representative.

Respondent’s Submission and Presentation:

The respondent contends that there was full consultation. A letter was sent to all staff, including the complainant, in fulfilment of the requirements of the regulations. The complainant received and read the letter as he subsequently wrote questioning whether the signature was indeed a representative of the respondent. The root cause of the complaint is the complainant’s misconception that he was in fact an employee of the local county council rather than the respondent.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) requires that I make a decision as to whether the complaint is well founded and, if so, the appropriate redress.

Issues for Decision:

Whether the respondent has complied with the requirements to consult under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

Legislation involved and requirements of legislation:

Section 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 details the requirements to consult as follows;

(1)     The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -

                (a)     the date or proposed date of the transfer;

                (b)     the reasons for the transfer;

                (c)     the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

                and

                (d)     any measures envisaged in relation to the employees.

(2)     The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3)     The transferee shall give the information in paragraph (1) to the employees’ representatives, 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.

(4)     Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5)     Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6)     Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

                (a)     the date or proposed date of the transfer;

                (b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

                and

                (d)     any measures envisaged in relation to the employees.

(7)     The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.

Decision:

The respondent afforded the employees an opportunity to elect a representative at an information meeting held on 5^th February 2016. The complainant did not attend this meeting. At the hearing the complainant stated that he did not receive the letter from the respondent which gave notice of the meeting and which detailed the required information regarding the transfer of undertakings. However, he responded to the letter on 26^th January 2016, the day after it was sent to all employees. The respondent also provided evidence that the letter was delivered to the complainant.

Accordingly, I find that the respondent has complied with the requirements of the regulations and the complaint is not well founded.

Dated:   21^st July 2016