ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002851

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

Date of Adjudication Hearing: 12/07/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, Section 6 of the Payment of Wages Act, 1991 and Section 27 of the Organisation of Working Time Act, 1997 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 (for convenience N0 1 Security) took over, in a TUPE transfer, a major Security Contract with Hotel Complex RX, on the 1^st April 2015.

In October 2015 the ERO for the Security Industry introduced new rates of pay.

Hotel Complex RX and Respondent No 1 could not come to an agreement on the implementation of the revised rates. A new Security provider, No 2 Security, took over the Contract on the 9^th November 2015 in an agreed transfer. Staffs were transferred in an agreed seamless manner as provided for under TUPE.

Security No1 had provided services up to the night of the 8^th November with Security No 2 taking over on the 9^th November.

All necessary Paperwork, details of all outstanding commitments and personnel records were transferred as soon as possible from No 1 to No 2. No 1 accepted that the transfer had been affected very late within the 30 day Consultation period but pleaded in mitigation that this was due to Hotel Complex RX not informing them of the new provider with only 4 days to go to the transfer.

Supporting correspondence was presented in evidence.

In relation to Payment of Wages claims Security No 1 verbally accepted that there may be some very minor wage payment adjustments due to former employees (approximately 65 in number) for their period with No 1 but these were due to normal administrative and standard, time sheet queries where a large no of staff were involved. These queries focused primarily on the correct hourly rates and the number of hours worked on particular shifts and duty patterns. There were, from time to time, different rates for different patterns of duty. Security No 1 via their legal representative under took, in good faith to the Adjudication Officer, to resolved these issues expeditiously on production of necessary details. This was a good will gesture and did not take from their stated TUPE position. Any monies owed would have to be recovered, in the first instance, by No 1 from the main Client Hotel RX

However in relation to Working Time Act complaints ( Annual Leave/Public Holidays) Security No 1 has now no liability for any of the Holiday claims being made by the Complainant as a TUPE transfer took place with Security No 2 effective from the 9^th November 2015.

Section 4 of S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 clearly applies.

Claims under section 7 of the Terms of Employment (Information) Act, 1994 cannot apply as all No 1 Employees were furnished with Contracts of Employment on commencing employment.

In the circumstances as much prior information as possible was afforded to all employees – No 1 not being notified until the previous Thursday 5^th of the new provider, No 2, taking over on the 9^th November 2015.

The Complainant’s claim for a Minimum Notice payment fails as this was clearly a TUPE transfer.

No 1 Security did all in its power to protect the interests of the employees and no loss resulting from any actions by No 1.

Any right or entitlement due to the Claimant should now properly be discharged by No 2 Security.

Decision:

Section 41(4) of the Workplace Relations Act 2015, Section 6 of the Payment of Wages Act, 1991, and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under those Acts.

Issues for Decision:

Did a TUPE transfer take place between No 1 and No 2 Security?

If so did the responsibility for the liabilities claimed by the Complainant transfer to Security No 2. ?

Is the Payment of Wages Act, 1991 claim well founded?

Legislation involved and requirements of legislation:

The Workplace Relations Act 2015, the Payment of Wages Act, 1991, the Organisation of Working Time Act, 1997 and S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Decision:

In DWT 071 of 2006 the Labour Court extensively examined a similar case in the Security Industry.

The Court considered extensive legal precedents from the ECJ, UK and Irish Courts.

A major previous case SIPTU and Grosvenor Cleaning Services Ltd (Det 0440) was considered at length by the Court.

The Chairman of the Court stated as follows - direct extract from DWT 071.

“Summary

For the sake of completeness and in response to the Union’s request for clear guidance in the matter, ( Holidays etc. in TUPE Situations in the Security Industry) the conclusions of the Court can be summarized as follows: -1. Every employee is entitled to paid annual leave in accordance with s19 of the Act.2. The requirement to provide the requisite annual leave is a health and safety imperative.3. The right to paid time off for annual leave is a fundamental social right of workers derived from the law of the European Community. It cannot be derogated from by agreement or otherwise.4. Except where the employment has terminated, the entitlement to paid time off for annual leave cannot be replaced by a payment in lieu.5. Where there is a transfer of an undertaking, business or part of an undertaking within the meaning of the Regulations, the transferee automatically stands in the shoes of the transferor as the employer of affected employees and there is no termination of employment.6. The responsibility to provide transferred employees with outstanding paid time off for annual leave transfers from the transferor to the transferee.7. Except where there is express agreement to extend the time, the annual leave must be given within the leave year.8. A leave year is the period commencing on 1st April each year and concluding on 31st March of the year next following.9. The times during the leave year at which the leave is to be given is determinable by the employer having regard to the criteria prescribed at s 20 of the Act (set out above)10. Where there is a failure to provide the full amount of annual leave to which a worker is entitled, except where the employment terminates, a cause of action accrues at the end of the leave year to which the leave relates or, where there is express agreement to extend the period, six months thereafter.11. Where there is a failure to provide annual leave in accordance with the Act an aggrieved employee’s cause of action is not for the recovery of money due but for the infringement of a social right. This is the equivalent of an action both for breach of contract and breach of statutory duty.12. Where a complaint alleging a failure to provide annual leave in accordance with the Act is upheld the redress awarded must go beyond mere compensation and must include a dissuasive component.13. Where there is a failure to provide annual leave and a transfer of undertakings occurs after the relevant leave year has expired (or where there is express agreement to extend the period by up to six months, that period has expired) the Determination of this Court in Grosvenor indicates that the transferor may not escape liability for its wrongdoing.”

Taking the above principles as a guide line the following facts are clear

There was TUPE transfer from No 1 to No 2 – all employees were transferred and the work and place of work (Hotel Complex RX) continued seamlessly from the 8t November to the 9^th November 2015. There was no Termination of Employment for the staff concerned.

To quote from DWT 071

Regulation 4 of the Regulations (S.I. No. 131/2003 – European Communities ( Protection of Employees on Transfer of Undertakings) Regulations 2003) provides that the transferor's rights and obligations arising from a contract of employment existing on the date of a transfer, by reason of such transfer, be transferred to the transferee. A fundamental obligation of an employer under a contract of employment is to employ the employee. Hence, on a transfer taking place, the obligation to employ the relevant employees of the transferor is transferred by operation of law to the transferee. There is thus no termination of the employment although the identity of the employer changes from the transferor to the transferee.

Specifically in relation to paid time off Point 6 from the Summary Guidelines from DWT 071 above refers

No 1 transferred all necessary records to No 2 – albeit at very short notice. A detailed print out of employee status, hours being worked, holidays etc. was exhibited by No 1. This printout was provided to No 2. The receipt of information was acknowledged by e mail from No 2. Copy exhibited by No 1. Section 4 of S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 applies.

Accordingly therefore I find that the Working Time Act, 1997 complaints against Security provider No 1 are not well founded and must fail.

A TUPE transfer had taken place and all labilities of Security No 1 had transferred to Security No 2. Accordingly this claim against Security No 1 must fail.

However the Legal representative for Security No 1, while not in any way compromising his position, undertook, as a good will gesture, to see what assistance could be provided to the Claimant regarding a dispute over hours worked in week 35 during the Security No 1 tenure.

There was a conflict in evidence as the computerised Time recording system records did not support the Claimant’s recollection. The Complainant was to provide suitable evidence for the Legal representative but the ultimate liability now lay with Security No 2.

Dated:   5^th October 2016