ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001137

Complaint(s)/Dispute(s) 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-00001501-001	16/12/2015
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-00001501-002	16/12/2015
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-00001501-003	16/12/2015
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-00001501-004	16/12/2015
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-00001501-005	16/12/2015
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-00001501-006	16/12/2015
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-00001501-007	16/12/2015

Date of Adjudication Hearing: 06/09/2016

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).

Attendance at Hearing:

By	Complainant	Respondent
Parties	A Worker	An Employer
Representative	Ger Malone, SIPTU	Peter Flood, IBEC

Complainant’s Submission and Presentation:

In summary, the transferee did not ensure that the complainant’s terms and conditions have transferred and applied from her previous employer. The complainant has had the same terms and conditions since 2006 or 2007, whereby she works a minimum of 20 hours and is paid for the basic hours and the equivalent hours under the heading of "Premium Pay". All other payments, i.e Public Holidays, Annual Leave are all paid to reflect that.

The transferor did not ensure that the complainant’s terms and conditions transferred properly. The complainant does not know exactly what information the previous employer provided to the new employer but contends that it was not accurate. The complainant had given written consent to pass on her full personnel file, her contractual details, pay and copies of the contract.

The complainant’s new employer has not observed her terms and conditions and she is at a very significant financial loss since the transfer of undertakings took place last July. .

The complainant’s representatives were not informed by the transferee of any changes that would impact negatively on her nor that they were not going to observe her terms and conditions of employment.

The complainant’s representatives were not informed by the transferor of any changes that would impact negatively on her. The previous employer did not inform representatives that the new employer was not going to observe her terms and conditions of employment.

The complainant’s new employer did not consult properly with her in relation to the transfer. The complainant was given a letter informing her that her service was continuous and that they were honouring the terms and conditions that she had enjoyed with her previous employer. Instead the complainant’s terms and conditions have not been honoured, they have been unilaterally altered.

The complainant’s previous employer did not consult properly in relation to the transfer. They assured her that that all current terms and conditions including service would be preserved in the transfer. The complainant’s terms and conditions have not been preserved contrary to what the previous employer communicated and what is provided for under the Undertakings Regulations.

Respondent’s Submission and Presentation:

The complainant transferred to the respondent on 13 July 2015. The respondent carried out all necessary due diligence connected to this transfer and received a copy of the complainant’s contract and a spreadsheet of the complainant’s employment details from the previous employer (transferor). The complainant’s contract stated that she was paid €10.75 per hour. The spreadsheet states the complainant’s hours as 20 per week.

The complainant completed a signing-on form with the respondent. This form is signed by the complainant and stares that her total contracted hours are 20 per week and that her hourly rate is €10.75 per hour.

After the signing-on process with the respondent, the complainant informed her manager that she worked 20 hours per week but received payment for 40 hours. The respondent company was not aware of any such arrangement, if any such arrangement ever existed prior to the transfer.

In a previous case the Employment Appeals Tribunal rejected a complaint where the transferee was not made aware of a particular arrangement a worker allegedly had with the previous employer (Ref: TU 1/2010).

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:

These complaints are filed against the transferee as respondent. The issues are in relation to whether the transferee ensured that were aware of the complainant’s terms and conditions of employment, that these terms and conditions transferred unchanged with the complainant and whether there was proper consultation with the complainant’s representatives regarding the transfer.

Legislation involved and requirements of legislation:

Transfers of undertakings are governed by S.I. No. 131/2003, European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Regulation 4 states:

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

(1) The transferor and transferee concerned in a transfer shall inform their respective employee’s representatives affected by the transfer of –
(a) the date or proposed date of the transfer;
(b) the reason 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.
(2)The transferor shall give the information in paragraph (1) to the employee’s representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out…

Decision:

It had been agreed that both ADJ-00001137 and ADJ-00001139 be heard together as they both are related to the same Transfer of Undertaking.

The complainant was employed in a ferry port as a security officer / screening officer having commenced employment in December 2005. Since that time her employment transferred on a number of occasions. In 2012 the complainant’s employment transferred to the company that is now the transferor. The Transfer of Undertaking that is relevant to this case took place on 13 July 2013 when the transferee took over the contract from transferor.

The complainant’s original contract was for 40 hours per week over 5 days. In 2008 the number of ships arriving in the port reduced which resulted in a radical revision of the hours worked by security staff. The working day was spread over 15.5 hours but would not normally total 40 hours per week. This resulted in the complainant working varied hours / split shifts and effectively being paid double time for each hour actually worked. A previous employer classed this payment as Hours Owed. When the present transferor took over the contract this arrangement appeared as Premium Pay on the payslip.

On 15 April 2015 the transferor wrote to the complainant advising that her employment would transfer to the new transferee on or about 1 June 2015 and requested her signed permission to forward her personnel file to the new employer which the complainant complied with. On 15 June 2015 the transferee wrote to the complainant advising that the transfer would be effective from 13 July 2015 and stating:

“As your new employer we are obliged by the Regulations to recognise your service with (the transferor) as continuous and to honour the terms and conditions you have enjoyed with them.”

When the complainant received her first payslip from her new employer she saw that she was only paid for the hours that she had worked. The complainant contacted the HR Dept. but could not resolve the issue. Subsequent discussions between the company and the complainant’s union representatives also failed to find a solution.

At the hearing the transferee explained that the information on the documentation that they had received from the transferor was that the complainant worked 20 hours per week and was paid €10.75 per hour. This was disputed by the representatives for the transferor who produced a copy of the document (entitled “New Contract – Employee Information”) which they said was given to the transferee. In the section for Pay Information, which had the hourly rate of pay as €10.75 per hour, was a handwritten note stating “paid double time”. When comparing the two documents it was clear that at some stage someone had tippexed out this note. A request was made to the transferor to forward the complete personnel file relating to the complainant that they had sent to the transferee and this was received on 27 September 2016. In addition to the above document there was a copy of an extract from a spreadsheet relating to the complainant that had been submitted in evidence at the hearing by the transferee. In the column entitled “Premium Pay” the copy on the personnel file has an entry of €10.75 whilst the copy submitted by the transferee had an entry of zero. In addition, included on the file was a copy of the complainant’s last payslip which shows the premium payment for that week and also shows gross earnings to that date which total €15,165.52 for 28 weeks.

It is clear therefore that any examination of the file would have upheld the veracity of the complainant’s position. I cannot say for certain who deliberately changed the documents on the file. What I can say is that I can see no benefit for the transferor in so doing. The result is that there has been a significant reduction in the complainant’s weekly pay whilst there is still a requirement to cover two or three shifts spread between 6.30 and 21.30 each working day.

Having regard to all of the above I make the following decisions:

Complaint No. CA-00001501-001:

This complaint relates to the alleged failure of the transferee to ensure that the complainant’s terms and conditions transferred from the transferor. The evidence submitted shows that the transferee received the personnel file but that persons unknown altered details on the file. The transferee in evidence said that they had not received a copy of a payslip from the transferor but there was one on the personnel file. If there was information missing then I have no doubt but that it could have been obtained on request from the transferor. I therefore find this complaint to be well founded and require the respondent to amend the information on the complainant’s personnel file to ensure that the premium payment is included as part of the complainant’s terms of employment and that the complainant is paid accordingly.

Complaint No. CA-00001501-002:

This complaint relates to the alleged failure of the transferor to ensure that the complainant’s terms and conditions transferred to the transferee. The transferor is not the respondent in this case but is the respondent in the related case, Ref. ADJ-00001139, and this issue will be dealt with in the decision relating to that case.

Complaint No. CA-00001501-003:

This complaint relates to the alleged failure of the transferee to continue to observe the complainant’s terms and conditions following the transfer. From the evidence produced I find this complaint to be well founded and I require the respondent to pay the complainant compensation to the value of €18,750.00.

Complaint No. CA-00001501-004:

This complaint relates to the alleged failure of the transferee to inform employee representatives of measures envisaged in relation to the employees. Following the raising of the issue specific to the complainant there were discussions about restructuring / increasing her working hours but, as noted, no progress was made in this regard. There was no specific evidence in relation to other measures which were introduced as a result of the transfer. I therefore decide that this complaint is not well founded.

Complaint No. CA-00001501-005:

This complaint relates to the alleged failure of the transferor to inform employee representatives of measures envisaged in relation to the employees. The transferor is not the respondent in this case but is the respondent in the related case, Ref. ADJ-00001139, and this issue will be dealt with in the decision relating to that case.

Complaint No. CA-00001501-006:

This complaint relates to the alleged failure of the transferee to consult with the representatives of the employees as provided for in the Regulations. The evidence was that the transferor wrote to each employee in mid-April informing them of the proposed transfer and that the complainant’s union representative was also advised in this regard. The transferee then wrote to each employee on 15 June 2015 informing them that the transfer would take effect on 13 July 2015, that their service would be recognised and that their terms and conditions would be honoured. No evidence was presented in relation to contact with the representatives of the employees by the transferee. I therefore find that this complaint is well founded and require the respondent to pay the complainant compensation of €400.00

Complaint No. CA-00001501-007:

This complaint relates to the alleged failure of the transferor to consult with the representatives of the employees as provided for in the Regulations. The transferor is not the respondent in this case but is the respondent in the related case, Ref. ADJ00001139, and this issue will be dealt with in the decision relating to that case.

Dated: 7^th November 2016