FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES : A FACILITIES MANAGEMENT COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - THE COMPLAINANT (REPRESENTED BY KRZYSZTOF FIC) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No R-151922-TU-14
BACKGROUND:
2. The employee appealed the Decision of the Adjudication Officer to the Labour Court on the 9th March 2016. The employer appealed the Decision of the Adjudication Officer to the Labour Court on the 6 April 2016. A Labour Court hearing took place on the 28th April 2016. The following is the Court's Determination:
DETERMINATION:
The Complainant brought a complaint before an Adjudication Officer pursuant to Regulation 10(1) of theEuropean Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 S.I. No. 131/2003 (the Regulations)alleging a breach by his employer a facilities management company of Regulations 4 and 8 of the Regulations when his employment was transferred from a Security Company to the Respondent.The Adjudication Officer’s Decision R-151922-TU-14 held that his complaint was well- founded and awarded him the sum of €1,440 in compensation in respect of the breach of Regulation 8 and the sum of €8,500 in compensation for the breach of Regulation 4 of the Regulations.
Both the Complainant andthe Respondent appealed this Decision.
The Complainant submitted a claim under the regulations to the Workplace Relations Commission on 12thDecember 2014.
Background
The Complainant has been employed as a Security Officer with a Security Company from 7thJune 2011 until he was transferred to the Respondent in accordance with the Regulations on 27thOctober 2014.
Summary of the Complainant’s Case
The Complainant submitted that the Respondent was in breach of Regulation 4 of the Regulations on the basis that the Respondent failed to comply with its statutory obligation to transfer his terms and conditions of employment when a transfer of undertaking took place on 27thOctober 2014. He claimed that he should have been paid at a rate of €10.75 per hour with effect from 8thJune 2014 and a Sunday Premium of €3.44; a night duty rate of €11.00; a night allowance of €16.80 and provided with a 39 hour working week. He also claimed that annual leave and public holiday entitlements were due to him. Furthermore, he claimed that the Respondent had failed to furnish him with 30 days’ notice of the transfer as provided for in Regulation 8 of the Regulations.
The Complainant gave evidence under oath to the Court.
Summary of the Respondent’s Position
The Respondent denied the Complainant’s allegations. The Respondent stated that it found itself in a unique situation regarding the transfer as the contract under which the Complainant was employed was not due to fully transfer over to it until mid-November 2014. However, the transferor’s insurance ran out, and in order to avoid a situation where the employees might have to be laid off, the Respondent decided to employ them at an earlier date than originally envisaged. The Respondent submitted that the Complainant was in no way disadvantaged as he was on sick leave at the time and did not return to work until almost a year later.
The Respondent stated that as part of the transfer due diligence process, it sought and received a breakdown of the details of all employees’ rates of pay and terms of employment, including the Complainant’s. It was very clear that it had abided by the terms and conditions in existence at the time of the transfer and had not altered them in the meantime. The Respondent accepted that in accordance with his pre transfer conditions, once the Complainant had three years’ verifiable service, his rate of pay would increase to €10.75 per hour. This was evidenced by the fact that on his return to work following a lengthy period on sick leave, when the matter was raised and clarified the Respondent paid him at the rate of €10.75 per hour.
Conclusions of the Court
The claim was submitted to the Workplace Relations Commission on 12thDecember 2014, therefore, only contraventions of the Regulations which may have occurred in the six month preceding the referral, i.e. the period from 13thJune 2014 to 12 December 2014 are cognisable for the purpose of obtaining redress.
The Court notes that the Complainant was out on certified sick leave from May 2014 until 8thDecember 2014, however, he did not return to work until August 2015.
Regulation 4 Claim
In his evidence to the Court the Complainant accepted that there were no alterations to his terms and conditions of employment consequent on the transfer. He submitted that his claims under the Regulations concerned outstanding annual leave and public holidays for 2014 which he claimed were due to him and payment of the appropriate rate of pay and allowances for hours worked from August 2015.
Regulation 4 of the Regulations provides that the rights of employees which are subject to transfer and the obligations of the transferee consequent on the transfer are dependent on the rights and obligations that were in existence at the date of transfer. Having considered the submission made the Court is satisfied that the Complainant’s rights including his terms and conditions of employment in existence as of the date of the transfer were transferred to the Respondent without alteration and accordingly finds that the Respondent met its obligations under Regulation 4 of the Regulations.
In these circumstances the Court finds that claims for entitlement to outstanding annual leave and public holidays are not matters which are capable of forming the subject of a complaint under the Regulations. Furthermore, in any event, the claims with regard to appropriate rate of pay and allowances for hours worked from August 2015 are outside the cognisable time period covered by the claim.
Accordingly, the Court does not find in favour of the Complainant’s claim under Regulations 4 of the Regulations.
Regulation 8 Claim
The Court notes that the Complainant referred a claim under the Regulations to the Workplace Relations Commission against the transferor (Security Company) alleging that it had failed to furnish him with 30 days’ notice of the transfer as provided for in Regulation 8 of the Regulations. The Adjudication Officer found in his favour and awarded him the sum of €1,440.00 in compensation.
A difficulty arises here where it is apparent that the Complainant has overlapping claims based on the same set of facts. It seems to the Court that as a matter of principle the Complainant cannot rely on the same matters to obtain redress from both the transferor and the transferee under the Regulations. The Complainant confirmed to the Court that he had received a cheque for €1,440.00 on behalf of the transferor Security Company (Dissolved) in discharge of his claim. The Complainant confirmed for the Court that he cashed that cheque.
The Complainant had been an employee of the transferor and as such in accordance with Regulation 8 of the Regulations the onus was on it to inform its respective employees of the transfer within the required time period.
The Law
Regulation 8 (1) of the Regulations states:-
“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.”
The Regulations place an obligation on the transferor to inform its employees concerned, and on the transferee to inform its own employees. There was no obligation on the transferee (in this case the Respondent) to inform the the Security Company's employees of the transfer. However, the Court notes that the transfer of employer occurred within the requisite notice period. In any event, as the Complainant cannot recover twice in respect of the same matters, the Court finds that the Complainant’s claim under Regulations 8 of the Regulations is not well-founded.
DETERMINATION:
For the reasons set out above the Court does not find in favour of the Complainant’s appeal. The Court does find in favour of the Respondent’s appeal, therefore the Adjudication Officer’s Decision is overturned and set aside.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
11 May 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.