ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001220

Complaint for Resolution:

Date of Adjudication Hearing: 07/03/2016

Venue: WRC Tom Johnson House, Haddington Rd, Dublin 4.

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint/dispute 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:

The Complainant has been employed as Office Deputy Manager for the past 13.5 years ending on 11^th December 2015. She was paid €650.25 per week. She has claimed that following a transfer of undertakings the Transferee did not retain her in her employment. The Respondent has breached the regulations. She is seeking re-instatement with the Respondent.

Subsequent to the 11^th December 2015 she obtained work as a Clerical Officer earning €260.25 less per week.

Respondent’s Submission and Presentation:

The Respondent did not attend. However they wrote to the Complainant stating, “The Respondent does not consider that TUPE legislation applies to your staff as no transfer of undertakings within the meaning of the TUPE legislation will occur when the branch office is closed. In this respect it is important to emphasise that there will be no change of ownership of the local branch office. Rather the branch office will merely cease to exist following your retirement. Thereafter, all services for that branch are to be provided via the Respondent’s existing office in the town which will become an Office as part of the Administration reorganisation of the Respondent’s public services for the area.

Once closed the branch office cannot reasonably be regarded as retaining its identity nor be considered as remaining in operation as a going concern. It is well settled that TUPE legislation is not applicable in such circumstances”

Subsequent to the hearing the Respondent sent in the following in support of their position:

Regulation 3 of The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003) states: “(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.

(5)     These Regulations shall not apply to sea-going vessels.”[1]

It is respectfully submitted that the Complainant’s complaint is fundamentally misplaced as no transfer within the meaning of Regulation 3 has occurred in the within proceedings. The facts are that the Respondent engaged Ms. H to operate as a Branch Manager. Branch managers are engaged on a self-employed basis not under a contract of employment.

The Respondent has no contract with Branch Office staff. In actual fact, the Branch Manager may not actually employ additional staff. If extra staff is employed, the Branch Manager as their employer determines their staff’s payment rates and conditions of employment. The Branch Manager provides their place of work and is responsible for Health and Safety and other employer obligations. The contract with Ms. H ceased in December 2015. At issue therefore is not a transfer of an undertaking but the termination of a contract whereby Party A (who employed the Complainant) provided a service for Party B which Party B now, at the end of the contract, wishes to be conducted by itself. Such activity is not a transfer of a Party A or part of same. There has been no legal transfer (including the assignment or forfeiture of a lease) or merger of the Complainant’s employer. Consequently, it is respectfully submitted that jurisdiction under Regulation is not invoked in this case.

Upon the cessation of the contract with Ms. H, the Respondent decided to provide a Centre (in an entirely different location to the place where the Complainant was employed). This move is reflective of the Respondent’s ongoing move towards modern, efficient service delivery and is not comparable to the services which were available through the former Branch Office which only offered very basic services. They listed a range of services

As the Court of Justice noted in Francisco Herndandez Vidal SA v Gomez Perez at para 35:

“The answer to be given to the questions submitted to the Court must therefore be that Article 1(1) of Directive 77/187 is to be interpreted as meaning that the directive applies to a situation in which an undertaking which used to entrust the cleaning of its premises to another undertaking decides to terminate its contract with that other undertaking and in future to carry out that cleaning work itself, provided that the operation is accompanied by the transfer of an economic entity between the two undertakings. The term ‘economic entity’ refers to an organised grouping of persons and assets enabling an economic activity which pursues a specific objective to be exercised. The mere fact that the maintenance work carried out first by the cleaning firm and then by the undertaking owning the premises is similar does not justify the conclusion that a transfer of such an entity has occurred.”

It is submitted for the reasons stated supra that the facts of the present fail to come within the scope of Regulation 3 of The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003).

Findings

I note that the Complainant’s representative chose not to respond to the additional written submission of the Respondent.

I wish to advise that I will be considering all evidence presented to me prior, at the hearing and subsequent to it in the interest of fairness.

I regret that the Respondent chose not to attend the hearing.

I note that for many years the service was provided by a contractor who employed the Complainant.

I note that it was clear to the contractor that the service contract would cease when the contractor retired.

I note that all the activity of that office, its equipment and files were transferred to the Respondents premises as part of their re-organisation of their services to that community.

I find everything transferred except the Deputy Office Manager who was not retiring.

Regulation 3 of The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003) states: “

(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.

I find that the business undertaken by the branch office did not cease with the transfer.

I find that all the activity was transferred, its equipment, files and all documentation transferred.

I find that the service that they provided transferred to the Respondent’s office.

I find that the customers transferred to the Respondents office.

I find that there was an economic entity that transferred and it continues to exist in the Respondent’s office albeit in an enlarged service provision.

Therefore I find that there was a transfer of an economic entity.

I find that this transfer is encompassed by the Transfer of Undertakings Regulations.

I find that the Respondent has breached these regulations.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

As per Sec 10(5) (a) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) I declare the complaint is well founded.

As per Sec 10(5) (b) I require the Respondent to comply with these regulations and allow the Complainant transfer to the Respondent’s employment with effect from 11^th December 2015. Her earnings in her new post should be factored into the calculations of arrears due.

I addition I require the Respondent to pay the Complainant compensation of €2,500 for breach of her rights under these regulations.

This is to be done within six weeks of the date below.

Dated:   14^th June 2016