ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002678

Complaints for Resolution:

Date of Adjudication Hearing: 28th June 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Act 1977, Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 20003 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

BACKGOUND:     

The Complaint said he was employed by the Respondent from 16^th March 2009 to 2^nd February 2016, on which date he submitted that there was a transfer of undertakings in accordance with the provisions of the 2003 Regulations to the Respondent as a transferee.   The Complainant was submitting that he was dismissed by the Respondent because of the transfer and that this rendered his dismissal unfair, he further submitted the Respondent was in breach of his rights under Regulation 8 of the 2003 Regulations.   The Complainant’s weekly rate of pay was €360.00c.

Summary of Complainant’s Case:

The Complainant said that his case concerns a transfer of undertaking and the new Employer not complying with their legal obligations under the 2003 Regulations to ensure that an employee’s terms and conditions transferred from the previous employer and also dismissing him.

The Complainant said that in early January 2016, he was verbally informed by his (then) employer that the business was being transferred.

The Complainant was unsure of his employment situation, and on a few occasions in January 2016, he spoke to a named Director of the Company about his possible entitlement to redundancy payments and he requested that she complete the necessary forms in order to allow him receive redundancy entitlements.   On each occasion he was informed that it was transfer of a business and that the new Owner was required to retain him in the employment and that he was not being made redundant. The Director further stated that if the Complainant attended his place of work on the day following the transfer of the business and the new Owner stated they were not keeping him in the employment he should seek further advice.

On 2^nd February 2016, the Complainant’s wife contacted the new Owner by telephone to inform that the Complainant had the keys of the premises and would be available to open the business on 3^rd February 2016.   She was informed by the new Owner that the Complainant was not required to open the premises on 3^rd February 2016 and would not be kept on in the employment; that they had no work for him, but he would be rang in a couple of months.   The Complainant handed the keys to the premises to the previous employer (the Transferor) and said that he (the Transferor) knew the Complainant was not going to be kept on in employment by the new Owner, to which the Transferor replied he would be (kept on).

Subsequently the Complainant received written confirmation from a Director of the Transferor dated 2^nd February 2016 that the transfer of the business had been finalised with the Transferee who was now the new business owner from the close of business that day.

On 17^th February 2016, Citizen’s Information wrote to the Transferor on behalf of the Complainant, outlining his rights under the 2003 Regulations and requesting the Transferor to make contact with the Complainant to clarify his position.   However that did not happen.

The Complainant said that the 2003 Regulations applies to any transfer of an undertaking, business or part of a business from one employer to another employer as result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

The Complainant said that all the rights and obligations of an employee under a contract of employment, other than pension rights, existing on the date of transfer, are transferred to the new employer on the transfer of the business.   The Complainant said that furthermore, an employee may not be dismissed solely by reason of the transfer.

The Complainant said from the evidence available, it is apparent that a transfer of undertakings had occurred between the previous owner and the new owner, the Respondent.

The Complainant said he was not retained in his employment by the Respondent when the business was transferred and was effectively dismissed from his job.

The Complainant said that he was dismissed from his employment solely because of the transfer of undertakings and that accordingly his dismissal was unfair and in breach of the Unfair Dismissals Acts and he sought a decision to that effect.

The Complainant also said the Respondent had not ensured that his terms and conditions of employment transferred following the transfer and that accordingly they were in breach of his rights under the 2003 Regulations and he sought a decision to that effect.

The Complainant gave evidence of his efforts to secure alternative employment and mitigate his loss.

Summary of Respondent’s Position:  

The Respondent was not present or represented at the Hearing and they sent no submissions.

Findings and Decisions:

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

Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Regulation 10 of the 2003 Regulations.

The Respondent was not present or represented at the Hearing and they sent no submissions, accordingly I only have the uncontested and unchallenged evidence and submissions of the Complainant to rely upon in these matters.

Based on the evidence available to me it is clear that there was, on 2^nd February 2016, a transfer of undertakings pursuant to the provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the 2003 Regulations) – and accordingly the Complainant is fully covered by the protections of the 2003 Regulations.   It is equally clear based on the available evidence that the Complainant was dismissed by the Respondent solely on the grounds of that transfer, which renders that dismissal unfair in accordance with the provisions of the Unfair Dismissals Act 1977.

Based on the above findings and all available evidence the following are my decision in relation to the complaints under the 1977 Act and the 2003 Regulations.

Unfair Dismissals Act 1977: CA-00003716-001:  

Based on the uncontested evidence of the Complainant, he was dismissed solely on the grounds of the transfer of undertakings that took place on 2^nd February 2016 and accordingly I must find and declare that the Complainant was unfairly dismissed by the Respondent; I declare that the complaint is well founded and it is upheld by me.

In considering the appropriate redress I have taken into account all factors including the views of the Complainant as expressed at the Hearing and I have concluded that there is in the instant case an absence of the minimum level of thrust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress is compensation.

The Complainant was unfairly dismissed by the Respondent and, in accordance with the provisions of Section 7 of the 1977 Act, I require the Respondent to pay him compensation in the sum of €6,500.00c within 6 weeks of the date of this decision.

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003:   CA-00003716:          

It does not sit well with a decision that the Complainant was unfairly dismissed by the Respondent on the date of the transfer, 2^nd February 2016, for which act he is awarded compensation in the above decision, to further find there was a breach of his rights under Regulation 4 of the Regulations that separately awards him further compensation for that.   In all the circumstances I find and declare that the complaint under the 2003 Regulations in relation to Regulation 4 is not well founded; it is rejected and is not upheld.

Seán Reilly, Adjudication Officer.

Dated: ___19^th October 2016