TUD165

FULL RECOMMENDATION

TU/16/11

DETERMINATIONNO.TUD165

r-140168-tu-13/SR

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003

PARTIES :

SR TECHNICS IRELAND LIMITED
(REPRESENTED BY A & L GOODBODY)

- AND -

KEVIN CARROLL

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Cryan
Worker Member: Ms Tanham

SUBJECT:
1. Appeal Of Adjudication Officer Decision No r-140168-tu-13.

BACKGROUND:

2. The Worker referred his case to the Labour Court on the 7th of April 2016, in accordance with Section 11(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003. A Labour Court Hearing took place on the 31st of May 2016.

DETERMINATION:

This matter came before the Court by way of an appeal by a Worker (the Appellant) against the decision of a Rights Commissioner / Adjudication Officer made in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulations).

The Appellant’s employment with the Respondent was terminated on 3^rdJuly 2013. The Appellant made his complaint under the Act on 18^thNovember 2013.

The Rights Commissioner / Adjudication Officer found that the complaint had been made outside the time limits laid down by the Act and that he had no jurisdiction to hear the complaint.

Preliminary issue

The Court decided to consider the issue of the time limits set out in the Act as a preliminary issue. The Court in made this decision in the interest of efficiency of process taking account of the decision of the Rights Commissioner / Adjudication Officer and of the fact that if the complaint was found to be outside of the statutory time limit such a determination would be determinative of the appeal in its entirety.

The Appellant’s complaint to the Rights Commissioner / Adjudication Officer was made on 18^thNovember 2013.

The Regulations at Section 10 in relevant part provide as follows

(6) A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.

Regulation 3 of the Regulations provides as follows

3.(1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

(2) Subject to this Regulation, in these Regulations -

“transfer” means the transfer of an economic entity which retains its identity;

- “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.
(3) These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.
(4) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a transfer for the purposes of these Regulations.

There was no dispute between the parties that the events which were contended to be a Transfer of Undertakings and which are at issue in the instant case occurred in 2009.

The Appellant made no application to the Rights Commissioner / Adjudication Officer for an extension of time. The Appellant made no such application to the Court.

In all of the circumstances the Court must find that the complaint of a contravention of the Regulations was made outside the period specified in the Regulations for the making of a complaint.

Determination

The Court determines that the complaint of the Appellant was made outside of the time limits set out in the Regulations. The decision of the Rights Commissioner / Adjudication Officer is affirmed. The appeal fails.

Signed on behalf of the Labour Court

Kevin Foley
4th July 2016______________________
JKDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.