TUD169

The Adjudication Officer decided on 21 July that the Complaint was not well founded. The Complainant appealed against that decision to this Court 19 August 2016. The Court gave the parties an opportunity to be hard and to present evidence relevant to the appeal at a hearing on 12 October 2016.

Background

The Respondent Company operates a leisure facility in County Longford. The Complainant was employed by the respondent on 15 September 2004. The Company experienced some difficulties and decided to transfer it business to Coral Leisure Ltd with effect from 6 March 2016.

Complainant’s Case

The Complainant submits that he was not formally notified, within the meaning of section 8 of the Regulations of the transfer of undertakings. He submits that he did not receive any correspondence setting out the date of the proposed transfer, the reason for the transfer, the legal implications of the transfer for him or a summary of the economic and social implications if any for him or of any measures envisaged in relation to him. He submits that while there may have been meetings arranged by the transfer and or transferee to provide him with that information he was never formally invited to any of those meetings and was not otherwise provided with the information required under regulation 8 (6) of S.I. No 131/2003.

The Respondent Company told the Court that it wrote to the complainant by way of a general staff notice that was sent to all of its employees by registered post on 25 January 2016. It submitted an An Post bar coded delivery record dated 29 January 2016 which it told the Court related to the letter sent to the Complainant. It submits that that letter discharged its obligations under the Regulations. It further submits that it arranged further meetings with all staff to address any queries they had. It told the Court that the Complainant was aware of those meetings and chose not to attend them. It submits that it complied fully with its obligations under section 8(6) of the Regulations.

The Law

Section 8(6) of S.I. 131/2003 states

(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d) any measures envisaged in relation to the employees.

Discussion

Both parties agreed that the letter on which the Respondent relies, had it been received by the Complainant, would have discharged all obligations under Regulation 8(6) of S.I. 131/2003.

As this matter was not in issue between the parties the Court makes no finding in that regard.

The matter at issue between the parties related to a claim by the Complainant that he did not receive the letter allegedly sent to him on 25 January 2016.

The Evidence

In order to determine this matter the Court took evidence from both the Complainant and Ms Sharon McAree.on behalf of the Respondent.

Ms McAree told the Court that she prepared the letter to staff and sent it by registered post to each employee in the Company. She said that the letter was signed for by a Mr L Duke whom she understood to have received it on the Complainant’s behalf. She said that she subsequently placed the letter on the notice board in the staff room. She said that the Complainant was invited to meetings to address any questions he may have had, that he was at work on the day on which the meeting took place and that he did not attend the meeting. She told the Court that all of the information required by regulation 8(6) was set out in the letter and that it was communicated to the Complainant.

The Complainant told the Court that he did not receive the letter. He said that the letter was not addressed to him but was in the nature of a letter to all staff. He said that such a letter should have been addressed to him by name.

He said that he did not attend the meeting referred to Ms McAree because he had not received a formal invitation to it. He said that he was aware it was taking place but did not attend it as he had not been invited to it.

In answer to questions from the Court the Complainant denied that he received a letter from Coral Leisure Ltd, the transferee, sent to him on the 25^thJanuary 2016. He subsequently acknowledged that he had in fact signed an An Post delivery receipt for that letter and had in fact responded to it by letter dated 26 January 2016. At that point he told the Court that he could not be sure which letters he received.

Findings

Both parties are agreed that the letter of 25 January 2016 discharges the Respondent’s obligations under regulation 8(6) of S.I. 131/2003. Both parties are agreed that the matter before the Court turns on whether the Complainant received correspondence allegedly sent to him on 25 January 2016.

Accordingly the Court has confined itself to that matter and has made no findings on the content of the letter or on whether or on the extent to which it meets the obligations set out in Regulation 8(6) of S.I. 131/2003.

The Respondent accepts that to comply with regulation 8(6) itmustinform each employee

• “… in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

  (a) the date or proposed date of the transfer;

  (b) the reasons for the transfer;

  (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

  and

  (d) any measures envisaged in relation to the employees.

The term used in the regulations is “must” and is accordingly mandatory. Accordingly the obligation lies with the Respondent to demonstrate to the Courts satisfaction, that it has met its obligation.

The Respondent relied on the evidence of Ms McAree who told it she sent the relevant letter to the Complainant on 25 January by registered post. She submitted a copy of the delivery receipt claiming it demonstrated that it had in fact been delivered to the Complainant’s address and had been signed for on 29 January 2016.

The Court found Ms McAree a credible witness who gave her evidence in a clear and frank manner.

The Complainant told the Court that he did not receive the letter. However he also told the Court that he could not recall receiving another letter sent to him that same day by Coral Leisure Ltd. However when it was drawn to his attention that he had in fact responded to that letter on 26 January 2016 he told the Court that he was not sure what letters he had received. He then went on to state that the letter sent to him on the 25^thJanuary did not have his name on it and accordingly was not a letter to him but rather a general staff notice.

The Court finds Ms McAree a credible witness and her evidence consistent with the documentation opened to it. The Court prefers it to that of the Complainant. The Court also finds that the bar code item delivery record dated 29 January 2016, on the balance of probabilities, confirms delivery of the letter of the 25^thJanuary to the Complainant. The Court further finds that the Complainant went out of his way to avoid being informed of the proposed date of the transfer or of the implications of the transfer of undertakings for him.

Accordingly the Court finds that the Respondent took all reasonable steps to notify the Complainant in writing of the implications of the proposed transfer of undertakings as required by regulation 8(6) of S.I. 130/2003. The Court further finds that the Respondent communicated the required information to the Complainant by letter of 25 January 2016 which was delivered to him or to another person acting on his behalf on 29 January 2016. Accordingly the Court finds that the Respondent discharged its obligations under regulation 8(6) of S.I. 131/2003.

Accordingly the Court finds that the complaint is not well founded and affirms the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
17th October 2016______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.