EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD20/2015
WT47/2015
CLAIM(S) OF:
Sergiusz Ziaja
- Claimant
against
ISS Ireland Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Fahy B.L.
Members: Mr. W. O'Carroll
Ms H. Henry
heard this claim at Galway on 16th May 2016
Representation:
Claimant: In Person
Respondent: Mr. Ronnie Lawless, IBEC, West Regional Office, Ross House, Victoria Place, Galway
The determination of the Tribunal was as follows:-
The respondent conceded the claim under the Organisation of Working Time Act, 1997 stating they owed the claimant 41.6 hours of annual leave at a rate of €9.50 per hour.
Background:
The claimant was employed as a General Operative from December 2007. At the time in question, December 2014, the claimant was employed in a clients’ premises (BS). However, the claimant was absent on authorised Carers Leave for a period of two years from February 2014 to care for his ill mother.
In late 2014 the respondent lost the contract in BS to another cleaning company, CG. On the 31st of October 2014 the respondent wrote to all staff, including the claimant, informing them the respondent’s contract in BS would cease from the 12th of December 2014. In the claimant’s letter, which was opened to the Tribunal, it stated he was on protective notice. He was also informed that “the rights and obligations arising from the employment with (respondent named) should transfer to the incoming contractor, (named) under the Transfer of Undertakings (Protection of Employment) legislation. (basic information of TUPE transfer is enclosed for you perusal).” The claimant was advised to contact the respondent if he had any queries and they, in turn, would stay in contact with him during the transition period.
On the 21st of November 2014 the claimant replied stating he did not want to transfer to the new employer, CG.
On the 27th of November the respondent again wrote to the claimant regarding his decision not to transfer to CG. The claimant was advised “..if you do not want your employment to transfer to (CG), you are effectively resigning from your position with the (respondent). Please note this will not result in a redundancy situation as your position will still exist.” The claimant was asked if he wished to resign he was to sign the enclosed form and return it by the 3rd of December 2014.
Having received no reply from the claimant the respondent wrote to the claimant on the 15th of December 2014 stating “In the absence of a response, I can confirm that we have accepted your resignation.”
Claimant’s Position:
The claimant stated in sworn evidence that he had refused to transfer to the new employer as he was absent on Carers Leave from the respondent company. He told the Tribunal that he had not wanted to resign either. It had been a very difficult time, his mother had passed away some months later.
Respondent’s Position:
The witness for the respondent stated the claimant had been clearly advised of all matters in relation to the loss of the cleaning contract in BS and the transferring of staff to the new employer, CG. All staff rights and obligations would transfer to CG. The respondent had written to the claimant on numerous occasions, even writing to him in January 2015 to meet and discuss the situation after his resignation had been accepted.
All other staff employed on the BS site transferred to the new employer, CG.
Determination:
The Tribunal heard all the evidence and are satisfied that the claimant was properly advised and informed by the respondent by letter dated the 31st of October 2014 of the Transfer of Undertakings.
However, the claimant resigned his position and did not avail of the transfer option open to him with the new employer.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)