ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001322

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00001269-001	04/12/2015

Venue : Ashdown Park Hotel, Gorey, Co Wexford

Date of Adjudication Hearing: 01/04/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

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

Background

The Complainant was employed as a Bar Person from 26^th December 2011 to 30^th April 2015. She was paid €10.50 per hour and worked 20 hours per week. She has claimed that the transferor (previous employer) has breached the transfer regulations by not maintaining her rights and obligations following the transfer of the business.

Complainant’s Submission and Presentation:

20 Mar 15 i received a letter outlining the business was been sold as going Concern. i have just learned that my new employer was not aware nor did he agree to carry me and my service forward to my new job. The letter I have from my previous employed doesn't seem to be worth anything. I have been advised to go down this road. I just want to add that the Pub was sold in May and reopened 01 July 2015. I was unemployed during that time. She is claiming that the former employer did not make sure that her terms and conditions continued. She was given 30 days’ notice of the transfer on 24th April 2015. She was issued with a P45 on 30th April 2015.The Pub closed for 2 days and re-opened on 3rd May 2015. She got a job there on 1st July 2015, same job, same pay. Later in the year she came to the realization that her employment should have continued interrupted. The employment was becoming very uncertain. So she submitted a claim on 4th December 2015. She has sought an extension to the time limit as she did not know her rights. She is seeking that her employment is deemed continuous and the Respondent (former employer) should have ensured that her employment continued.

Respondent’s Submission and Presentation:

The Respondent’s representative identified the correct legal entity of the Respondent. They stated that the transfer took place on 8^th May 2015. The business was sold to a named party as a going concern. The Transferee (new employer) under Regulation 4 takes on the rights and obligations associated with employing the Complainant. Therefore the alleged contravention of this law took place on 8^th May 2015. This claim was presented to the Commission on 4^th December 2015 therefore this claim is out of time and the Adjudication Officer cannot hear it.

Findings

I note that the Complainant was advised some 30 days in advance of the transfer of the ownership to take place on 24^th April 2015.

I note that the actual transfer took place on 8^th May 2015.

I note that the Transferor (Former employer) did not advise her of who the new owner was.

I note that she was issued with a P45 on 30^th April 2015, which was her last day at work for some time. This in itself does not prove anything.

I note that the Complainant was unable to advise the hearing why she did not turn up for work the next day or who might have told her not to. This I find is most unusual.

I find that it is the responsibility of the Transferee (new employer, not the Transferor, the old employer) to honour the terms and conditions of employment.

Therefore I find that the claim against the Transferor (former employer) is misconceived.

Regulation 6 states that an Adjudication Officer may not entertain a complaint if it is presented outside the 6 months after the alleged contravention has taken place. In this case the alleged contravention took place on 8^th May 2015 therefore the Complainant had until 7^th November to present a claim to the Commission. The complaint was not made until 4^th December 2015. I find that she has not established reasonable cause to extend the time limit; therefore I also find that this claim is out of time.

Decision:

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

I have decided that the complaint against the Respondent is misconceived.

I have decided that the compliant was presented to the Commission outside the 6 month time limit allowed under this legislation and so is out of time.

I have decided that this complaint is not well founded.

Dated: 14^th June 2016