ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000831

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

Date of Adjudication Hearing: 23/03/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

Respondent A:     The background to the claims arise from the transfer of the employment of the complainant from Respondent A to another service provider. This transfer, although a second generation transfer, was covered by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003. The Request for Tender published by the educational institute (where the complainant was employed as a part-time cleaner) specified that acceptance of TUPE regulations was a requirement of the successful tenderer. In addition, the majority of workers on this specific contract transferred to the new employer. It therefore follows that all terms and conditions and benefits of the complainant transfer with her to the new employer.

     Complaint under Industrial Relations Act, Ref: CA-00000988-001

     The complainant was not unfairly dismissed. Her employment transferred under TUPE regulations and she was notified at least one month beforehand to this effect.

     Complaint under The Organisation of Working Time Act, 1997, Ref: CA-00000988-002

     All terms and conditions of employment transfers with the complainant to the new employer and therefore the complainant has no complaint against this employer and should request her accrued annual leave from her new employer.

     Complaint under The Payment of Wages Act, 1991, Ref: CA-00000988-003

     The complainant states that she did not receive payment in lieu of her notice for termination of her employment. As her employment transferred there was no requirement on this respondent to make any payment in lieu of notice.

     Complaints under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations,2003. Refs: CA-00001413-002/4/8/10/11

   The first complaint alleges that this respondent did not ensure that the complainant’s terms and conditions transferred to the new employer. This respondent consulted with the new employer throughout the transfer process and gave them details of all our employees. The second complaint alleges that the complainant was dismissed and her service broken. Under the Regulations her new employer is obliged to recognise the complainant’s terms and conditions of employment including service. This respondent has fulfilled its obligations in this regard. The other complaints are that this respondent did not consult with employee representatives or inform them of certain details of the transfer. This respondent informed all employees concerned about the transfer in the time limit specified and was not made aware of any representatives of the employees. If we had been aware we would have consulted with them. In addition the complainant did not raise any grievance with this respondent even though she had ample opportunity to do so.

Respondent B: There was no attendance by any representative of Respondent B.

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.

Issues for Decision:

The main issue to be decided is whether or not the transfer of the complainant’s employment from Respondent A to Respondent B was such as to be covered by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 as all complaints are linked to this matter.

Legislation involved and requirements of legislation:

The law in this area is covered by the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003, S.I. No.131/2003 and the relevant provisions of Directive 77/187/EEC together with the case law arising.

The relevant sections of S.I.131/2003 are as follows:

Regulation 3

(1)“These Regulations shall apply to any transfer of undertaking, business, or part of an undertaking or business from one employ 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 apply to public and private undertakings engaged in economic activities                   whether or not they are operating for gain.”  

Regulation 4

“(1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2)Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force of another collective agreement.”

Regulation 8

“(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.”

Paragraph (6) deals with the situation where there are no employee’s representatives and states that the above information must be given in writing to each employee not later than 30 days before the transfer

Decision:

Case law has established that each situation must be considered on its own merits. This involves consideration of the following areas:

1. The type of business concerned
2. Whether or not its tangible assets are transferred
3. The value of its intangible assets at the time of the transfer
4. Whether or not the majority of its employees are taken over by the new employer
5. Whether or not its customers are transferred , and
6. The degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended.

In this case the complainant worked as a part-time cleaner in an educational institute for Respondent A since January 2015. Some time later the institute invited tenders for the cleaning contract and included a clause that referenced the TUPE Regulations and required that the tenderer give an undertaking to fully comply with same. On May 29 2015 Respondent A wrote to the complainant informing her that her employment would transfer on June 30 2015 to “an as yet unnamed company in accordance with the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006.” The letter went on to emphasise that there would be continuity of employment and that rates and holidays would transfer to the new company. This letter issued even though on May 10 2015 Respondent B had written to Respondent A stating that TUPE does not apply to second generation transfers in Ireland and citing a number of legal cases in this regard. The complainant was given a job application form to complete by Respondent B. She was then offered a position and given a new contract of employment as a day one employee to sign. All other employees were also processed in the same manner and whilst a small number decided not to transfer employment the majority of the workers did so. The complainant was told that she had to sign the new contract if she wanted a job and she therefore signed it. The complainant transferred employment without any break. Almost immediately she ran into an issue regarding annual leave entitlement that she had earned. Respondent A told her that this had transferred to her new employer whilst Respondent B stated that as a day one employee any liability in this regard lay with her previous employer.

The Suzen case clarified that there could be a transfer of undertaking even where there was no transfer of assets and there may be a transfer even when there is no contractual link between the two parties. It is also possible for a transfer to occur even though the parties did not intend it (ECM v Cox). In that case Mr. Justice Morrison said; “It can be said with confidence that neither the presence nor the absence of any one factor will demonstrate that a transfer has occurred. It is a question of looking at the facts and keeping an eye on the purpose of the protection given by the Directive.”

Having regard to all of the above and taking into account the considerations outlined above I am of the opinion that the Regulations apply. In particular the majority of the workforce transferred and continued to do the same work for the same customer, there was no break in the actual work when moving from one employer to another and the wording of the Request for Tender certainly envisaged that the process would involve TUPE Regulations as the institute offered to supply TUPE information to genuine parties who requested same.

It is now necessary to examine each complaint in the light of my decision that the Regulations in S.I.131/2003 apply:

Industrial Relations Act, Ref No CA-00000988-001

I find that there was no dismissal as the complainant’s employment transferred under the Protection of Employees on Transfer of Undertaking Regulations 2003 and consequently no recommendation in relation to compensation is required.

The Organisation of Working Time Act, Ref No.CA- 00000988-002

I have considered this complaint in the light of the general principles set out by the Labour Court in Determination No. DWT071 (Top Security Ltd / A Group of Workers). Amongst its conclusions the Court stated:

“The responsibility to provide transferred employees with outstanding paid time off for annual leave transfers from the transferor to the transferee.

Except where there is express agreement to extend the time, the annual leave must be given within the leave year.

A leave year is the period commencing on 1^st April each year and concluding on 31^st March of the year next following.”

Based on the above I find that there is no claim under the Act in relation to Respondent A. The liability, following the determination that the Regulations apply, is with Respondent B. This liability is to ensure that between 1st April 2015 and 31^st March 2016 the complainant would receive her full entitlement to annual leave. As the hearing took place on 23^rd March 2016 and the actual complaint was lodged some months previously it is premature to make any decision as to whether, or to what extent, Respondent B might be in breach of the Act. I find therefore that Respondent A has no liability under the Act and that the complaint against Respondent B is not well founded.

The Payment of Wages Act, Ref No. CA-00000988-003

This complaint was a claim against Respondent A for one weeks’ pay in lieu of notice. As I have found that there was no dismissal the question of notice does not arise and I therefore find that the complaint is not well founded.

European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003, Ref Nos. Ca-00001413-002/4/8/10/11

In relation to the complaint against Respondent A to the effect that they failed to fulfil their obligations regarding information and consultation as set out in Paragraph 8 of the Regulations, I note that a letter was issued to the complainant within the time frame set out therein but their representative accepted in evidence that there was no consultation as such. In addition the employees were not made aware of the interpretation put on the transfer by Respondent B. I therefore find that this complaint is well founded and require Respondent A to pay the complainant compensation to the amount of €500.00.

In relation to the complaints against Respondent B, I am satisfied that a copy of the complaint was sent to that respondent but they did not attend the hearing. In respect of the complaints under Regulation 8 I note that there was no communication with the complainant regarding the transfer. I therefore find that these complaints are well founded and require Respondent B to pay the complainant compensation to the amount of €500.00. In respect of the complaints under Regulation 4 I note that the complainant was informed by this respondent that she would have to sign a new contract if she wished to continue working in the institute and that this contract specifies her commencement date to be 1st July 2015. I therefore find this complaint to be well founded and require Respondent B to issue confirmation to the complainant that her employment contract (with its rights and obligations including accrued annual leave) transferred to them and that her commencement date is 9^th January 2015. I also require Respondent B to pay the complainant compensation for breach of the Regulation to the amount of €1,500.

Dated:           1^st June 2016