EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD865/2015
CLAIM OF:
Brendan Norton
- claimant
Against
Securway At Risk Security Group Limited T/A Sar Security
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr J. Goulding
Ms M. Mulcahy
heard this claim at Dublin on 4th July 2016.
Representation:
Claimant: Mr.Martin Collins BL instructed by Mr. Tom Collins, Tom Collins & Co., 132 Terenure Road North, Dublin 6W
Respondent: Mr. Ruairi de Burca, De Burca, Solicitors, 27 Washington Street, Cork
The determination of the Tribunal was as follows:-
This being a case of constructive dismissal it fell to the claimant to give evidence first.
Claimant’s Case:
The claimant commenced employment on 8th October 2008 in the role of Static Guard. He worked on numerous sites and never refused work. He worked on a site in Greenhills for approximately one year. He was not a member of a union and as he did not drive he had to take the luas and a bus to his destination. He was subsequently transferred in mid March 2015 to a site in Cherrywood and his colleague CM was transferred to Priory Hall. They were both replaced on the Greenhills site. After nine weeks working in Cherrywood a new contractor took over the site. The claimant did not wish to work for the new contractor. AB, Operations Manager of the respondent company telephoned him and enquired why he was not happy to work for the new contractor (KS). The respondent had no further work for him. He refused to work for the new contractor and requested his P45.
Some time later he signed up for a computer course and in November 2015 he became aware that the respondent had an Open Day and were recruiting staff and clearly had work.
He secured alternative employment on 20th June 2016.
DM also a Static Guard worked for the respondent for six years on the Cherrywood site. In 2015 he was put on a four day week. He remembered the claimant commencing work on this site on 15th March 2015. In March 2015 PM told him verbally that the respondent had lost the contract on that site and that a new contractor would be taking over the site in the coming months. CMcC asked him if he was happy to stay working on the site. He was happy to stay and transferred over to the new contractor (KS).
Respondent’s Case:
MW is Operations Manager of the respondent company and is a year in that role. He had previously worked in HR and managed sites. He is responsible for all operational issues. As work progresses on sites staff are reduced down and this was the case on the Greenhills site. The claimant was firstly transferred to a site in Ballyfermot and then transferred to a site in Cherrywood following performance issues of staff already working there. The respondent became aware that they had lost the contract on the Cherrywood site on 26th March 2015. They did not tender for the contract for the site. They were given a month’s notice which was not enough and this was extended by a further month. Tenders are inclined to roll over from year to year and can be in excess of four years. The company KS had won the contract. It was standard in the industry that employees transferred over to a new contractor. In the first week in April he went through the employee files with HR of that company. GB had been dealing with staff on the Cherrywood site. The claimant did not want to transfer. The witness told him that he could not guarantee work. The claimant requested his P45. KS had the claimant’s file. The respondent hand delivered a letter dated 29th May 2015 to the claimant notifying him that he was accordingly to transfer over to KS pursuant to European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. As the claimant had advised that he did not wish to transfer MW urged the claimant to reconsider his position in this regard. In that letter also MW advised the claimant that in the event that he should maintain his position in terms of not wishing to transfer that the respondent would have no other option but to treat him as having resigned.
By letter dated 5th June 2015 the respondent’s solicitors wrote to the claimant’s solicitors indicating that the respondent had to treat the claimant as having resigned his position. The respondent’s solicitors asked in that letter that the claimant engage with KS as a matter of urgency to ascertain whether that company had held the claimant’s position open for him.
No response was received to that letter and a week later KS was still happy to meet with the claimant.
The respondent had an open day in November 2015 to recruit staff for a short period over the Christmas.
Determination
The Tribunal carefully considered the evidence adduced and the detailed submissions made by the legal representatives in this case. The respondent in this case is a provider of security services. The claimant was assigned to work on a site in Cherrywood when the respondent lost the contract for servicing that site. The respondent argued that the claimant’s employment was subject to a transfer of undertaking and therefore it no longer was the claimant’s employer. The claimant’s position is that he objected to the transfer and that the respondent by not providing him with further work unfairly dismissed him.
Submissions were made on behalf of the Claimant to include, inter alia, that the Claimant was selected to be moved to this site in Cherrywood in the knowledge that the contract was coming to an end and further that the case law in the Symantec differed.
There are many issues before the Tribunal to determine which include:
- Was the claimant selected for transfer to this site in a deliberate act by the Respondent knowing that this contract was coming to an end?
- Was the claimant’s contract of employment legitimately the subject of a transfer of undertakings?
- And if so was the claimant bound by the transfer?
In answer to the initial question, the Tribunal has disagreement.
Dissenting Opinion:
One member is of the view that this did happen. The Claimant had been working with the employer since 2008. The Claimant received correspondence dated the 29th May 2015 that his employment was being transferred to Company KS. The claimant was moved to the site in Cherrywood. The Respondent told the Tribunal that he was unaware that he lost the contract until the end of March 2015. The dissenting decision is that there was no evidence before the Tribunal as to when the Respondent was actually informed save for details of a telephone call and this is not satisfactory given that there was evidence that the contract with the Respondent was not renewed and had been “rolling over” for over 2 years. The Tribunal feels that the claimant was transferred to this site in the knowledge of the change of employment in the future and the loss of the contract. Given this, the dissenting view is that the Claimant’s claim under the Unfair Dismissals Acts 1977 to 2007 succeeds.
Majority Decision:
By majority, it is found that whereas there may have been a cavalier attitude adopted by the Respondent, there was an agreement (Paragraph 3.2 and 6.3) under the Contract of Employment that the Claimant’s place of work was subject to change at the behest of the Respondent and there was also a need for Security personnel at the site in Cherrywood at the time of the transfer. Further, it is acknowledged that the role that the Claimant was employed to work at in Cherrywood still continues with the new Employer after the TUPE transfer and therefore, the job/role was still open to the Claimant.
After deciding on this point, the Tribunal now addresses if this case is a genuine case of EU Directive SI 231/ 2003, The European Communities (Protection of Employees on Transfer of Undertakings) Regulation 2003 effect compliance with EC Council Directive 2001/23/EC and applies to “undertakings, business or parts of undertakings and businesses.”
Spijkers (1986) 2 CMLR 296 states “the overriding objective of the Directive is to protect workers in a business which is transferred…. In deciding if there has been a transfer … all the circumstances have to be looked at. Technical rules are to be avoided and the substance matters more than the form.” Spijkers criteria in ascertaining if a transfer:
a) Has the entity retained its identity?
b) Have assets transferred (although not essential)?
c) What has happened to intangible assets such as goodwill, have they transferred?
d) Have some or all of staff transferred?
e) Has the customer base transferred?
f) Are the activities post transfer the same as per transfer?
g) If there is no transfer of assets and the transfer does not take over a major part of the workforce and the combined entity of the group of employees and assets they used to carry on the economic activity is not transferred, in circumstances where the economic entity needs assets to continue in existence there may not be a transfer as per the qualifications as laid down in Suzen.
The Tribunal also refers to the Suzen decision:
Thus, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity. Such an entity is, therefore, capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. (Suzen, paragraph 21).
The Tribunal is satisfied that the claimant’s employment was the subject of a transfer of undertaking under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. It is determined that this was a standard TUPE case and the transfer of all staff on a site is generally considered “custom and practice” in this sector of the employment.
Regulation 4(1) of the Regulations provides that:
The Transferor’s rights and obligations arising from a contract of employment existing on the date of the transfer shall, by reason of such transfer, be transferred to the transferee.
However the Regulations do not prevent the employee from deciding of his own accord not to continue the employment relationship with the transferee.
In the case of Symantec v Leddy, Edwards J. found that nothing in the Regulations or in national legislation facilitates the employee in maintaining a relationship with the transferor that would enable him to make a claim for redundancy.
The Tribunal finds, by majority, that neither the Regulations nor national legislation, support the claim in this case for unfair dismissal. The claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)