ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001139

Complaint(s)/Dispute(s) for Resolution:

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).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The respondent is not aware of any complaints from the complainant or her union in regard to the consultation process.

The respondent provided the date and reasons for the transfer and any legal implications or measures envisaged in relation to the transfer.

The respondent’s responsibility rests within Regulation 8 and it is satisfied that it complied with its obligations under this regulation.

Once the transfer was completed the respondent ceased to be the employer and the transferee became the complainant’s employer.

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:

Did the transferor consult with employees’ representatives as provided for in the Regulations and provide the necessary information to the transferee?

Legislation involved and requirements of legislation:

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

Regulation 4 states:

1. 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.

2. 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 or application of another collective agreement…

Regulation 8 states:

1. The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of –

1. the date or proposed date of the transfer;

2. the reasons for the transfer;

3. 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

4. any measures envisaged in relation to the employees.

1. The transferor shall give the information in paragraph (1) to the employees’ 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.

     Paragraph (4) of this section reads:

                 Where the transferor or transferee envisages any measures in relation to employees, he or she shall consult with the representatives of the employees, 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, in relation to any such measures with a view to reaching agreement.

Decision:

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

The complainant is employed in a ferry port as a security officer / screening officer having commenced employment in December 2005. Since that time her employment has 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 2015 when the transferee took over the contract from the transferor.

The complainant’s original contract was for 40 hours per week over 5 days (including week-ends). In 2008 the number of ships arriving at the port reduced which resulted in a radical revision of the hours worked by security officers. 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. This arrangement was shown on the payslip as Premium Pay.

On 15 April 2015 the transferor wrote to the complainant advising her 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. The complainant complied with this request.

When the complainant received her first payslip from her new employer she noticed that she was only paid at flat time for the hours that she worked. She contacted the transferee’s HR Dept. but could not resolve the issue and subsequent discussions with the complainant’s union representatives failed to find a solution.

The transferee’s position at those discussions and at the hearing was that the information that they had received from the transferor indicated that the complainant worked 20 hours per week at €10.75 per hour. This was disputed by the representatives of the transferor who produced a copy of a document (entitled “New Contract – Employee Information”) which they said they had given to the transferee. In the section for Pay Information which showed 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 this note had been tippexed out on the version submitted by the transferee. A request was made at the hearing for 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 spreadsheet relating to the complainant, an extract of which had been submitted to 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 transferee’s copy was marked zero. Also 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 date which total €15,165.52 for 28 weeks.

Evidence was also given at the hearing by the transferor that in addition to writing to the individual employees concerned in the transfer they had also been in contact with the union representing those employees prior to the transfer.

Having regard to the above I make the following decisions:

Complaint No. 00001903-001:

This relates to the alleged failure of the transferor to ensure that the complainant’s terms and conditions properly transferred. Having considered the evidence, I believe that the information regarding the terms of the complainant’s contract were given to the transferee and that what subsequently transpired was not the responsibility of the transferor. I therefore do not find this complaint to be well founded.

Complaint No. 00001903-002:

This relates to the alleged failure of the transferee to observe the complainant’s terms and conditions. This matter has been dealt with in the decisions of the linked case, Ref No. ADJ-00001137.

Complaint No. 00001903-003:

This relates to the alleged failure of the transferor to inform the employees’ representatives of measures that would impact on the complainant. There was no evidence presented that the transferor was aware of or envisaged any such measures and accordingly I do not find this complaint to be well founded.

Complaint No.00001903-004:

This relates to the alleged failure of the transferor to properly consult with the employees’ representatives. The evidence of the transferor was that they had advised the employees’ union of the forthcoming transfer and that no issues had been raised in that regard up to the date of transfer. On the basis of the evidence before me I do not find this complaint to be well founded.

Dated:   7^th November 2016