ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002745

Complaint for Resolution:

Date of Adjudication Hearing: 02/08/2016 

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

The Complainant was employed by a named Transferor from 1^st February 2010 and following a Transfer of Undertaking in February 2016 she transferred to the Respondent Company. The Complainant worked as a Cleaning Operative for 10 hours each week and she was paid €197.00 net per week. The Complainant referred a complaint to the Workplace Relations Commission on 13^th April 2016 alleging she had been unfairly dismissed by her Employer on 23^rd February 2016.

Summary of Respondent’s Position.

The Respondent Company provides a range of facility services to clients on a contract basis. The Respondent tendered for a cleaning contract which had previously been operated by the named Transferor. The tender for this contract was to provide cleaning services from 6am to 8am or 6.30am to 8.30am. There were three employees affected by the successful tender with two to transfer to the Transferee while the third employee had been offered alternative employment with the Transferor.

Due diligence information was received from the Transferor and this confirmed the hours of work were from 6am onwards. At a meeting with the two employees to transfer it became apparent that the Complainant had ben starting work at 4.45am but there was no evidence to show that this had been approved by the Transferor or the client company. The Respondent raised this query with the Transferor and they subsequently advised that in fact the Complainant worked from 4.45am to 6.45am. This had not been authorised by either the Transferor or the client. As the issue could not be resolved the Respondent wrote to the Complainant on 23^rd February 2016 confirming her hours were from 6am to 8am. They also stated that if the Complainant was unable to work these hours then the Complainant would be unable to transfer to the Respondent Company.

The Respondent argued that the TUPE Regulations are clear that employees are entitled to transfer under their terms and conditions of employment. The Transferor in this case had applied and won a tendering process which was for services to be provided to the client from 6am to 8am and not 4.30am to 6.30am. The contract that was put up for tender and won by the Respondent was the same contract that had previously applied. The Complainant had the option of transferring and operating the contracted hours from 6am to 8am with the Respondent and seeking to rearrange her other working hours with the Transferor. The Complainant was not prepared to transfer and operate these contracted hours.

Summary of Complainant’s Position.

The Complainant stated that when she had commenced employment with the Named Transferor she worked from 4pm to 6pm and in September 2015 she commenced working at 4.45am to 6.45am.

The Complainant received a letter from the named Transferor on 22^nd January 2016 explaining that they had lost the contract with the named client company and that her employment was to transfer to the Transferee on 22^nd February 2016. The Complainant stated that she had made personal arrangements with the Transferor to commence work at 4.45 am and 6.45 am Monday to Friday. She stated that her security access was adjusted accordingly. She was contacted by the Respondent on 19^th February 2016 and informed that her contracted hours were from 6am to 8am effective from Monday 22^nd February 2016. The Complainant stated that she informed the Respondent that she could not work those hours as she worked another contract at that time. The Complainant stated that she received a letter dated 23^rd February 2016 in which she was informed that following a number of meetings with her she had indicated she was not prepared to work the awarded and contracted hours on the client site from 6am to 8am accordingly the Respondent was rejecting the TUPE transfer of her employment

On the basis of the evidence presented by both Parties I find as follows:

1. It is clear from the evidence that the Respondent Company had tendered for a Contract with the named Client to provide cleaning services from 6am to 8am Monday to Friday.
2. The evidence after due diligence was completed shows that the Transferor informed the Transferee that the Complainant worked from 6am to 8am Monday to Friday. They also confirmed later that they were unaware that effective from September 2015 the Complainant by agreement with her Supervisor had changed her hours to commence at 4.45 am to 6.45 to accommodate the Complainant’s working hours elsewhere. The Transferor stated in an email that the HR Department of the Transferor had not been informed of this.
3. It is also clear that following a number of discussions between the Complainant and the Respondent Company that the Complainant was not prepared to work the contract hours from 6am to 8am.
4. The Complainant was informed that as she was unable to work the contracted hours that she could not therefore transfer to the Respondent. The Complainant was informed of this by letter dated 23^rd February 2016. The Complainant confirmed at the Hearing that she was not prepared or available to work these contracted hours.
5. On the basis of the evidence I find that the Complainant was not unfairly dismissed by the Respondent Company following a Transfer of Undertaking as the Complainant made it clear she was not prepared to work the Contracted Hours of 6am to 8am as provided for in the tender contract.

Decision CA-00003810-001

On the basis of my findings above and in accordance with Section 8 of the Unfair Dismissals Act, 1977 I declare the complaint is not well founded.

Date:     11/10/2016