ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002744

Complaints for Resolution:

Date of Adjudication Hearing: 27/07/2016

At:                         Workplace Relations Commission, Dublin 4.

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Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 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.

Background

The Complainant was employed with the Respondent from 28^th June 199 until the Complainant was transferred to a Named Transferee under TUPE Regulations on 26^th February 2016. The Complainant worked 16 hours a week and was paid €355.00 a week.

The Complainant referred a complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 to the Workplace Relations Commission on 5^th April 2016 alleging the Transferor did not transfer his correct terms and conditions to the Transferee and there was no consultation with the employees or Employee Representatives prior to the transfer.

Summary of Complainant’s Position

The Complainant stated that prior to 2008 he had a contract of employment where he worked 5 days a week on the Relief Team working as a Chef. He worked 2 days – Saturday and Sunday each week and 3 days mid-week. From 2008 onwards he worked 2 days only at week-ends and he confirmed at the Hearing that in 2015 up to the Transfer on 26^th February 2016 he had worked 2 days only. Following the TUPE he continued to work 2 days only. He is claiming that his Contract of 2008 is his legal Terms and Conditions of Employment

The Complainant stated that there was only one meeting with the Transferor at which the employees were told about TUPE. The Complainant stated that he had requested a one to one meeting but this was not granted. Therefore he is claiming a lack of consultation by the Transferor prior to the Transfer.

Summary of Respondent’s Position

The Complainant was employed from 28^th June 1999 until his employment transferred to the Named Transferee effective from 27^th February 2016. The Transferor was informed verbally on 4^th January 2016 that they had lost the contract to provide services and this was confirmed in writing on 5^th January 2016. A consultation meeting with all the employees took place on 8^th January 2016 to discuss the details of the transfer. The Complainant and all employees were notified by letter dated 18^th January 2016.

The Transferor received a request on 17^th January 2016 for all relevant employee information in order to affect the transfer. This was provided to the Transferee on 25^th January 2016 and provided in relation to the Complainant that he had been employed from June 1999 in his role as a Chef, paid €17.75 an hour and his contracted hours were 16 hours at the weekend with 8 hours paid at the basic rate and 8 hours at time and a half, he had annual leave entitlement of 25 days per annum and it outlined his sick pay entitlements. This corresponds to the two contracts the Complainant had effective from 2008 which provided for 8 plus hours at the weekend which at the time of the transfer the Complainant was working 16 hours over Saturday and Sunday. His contract also provided for relief hours where available and requested by the Complainant. These resulted from discussions in 2008 – the notes and correspondence between the Parties was provided to the Hearing. The Letter of 11^th June 2008 sets out the change in his Contract of Employment arising from the discussions over April to June 2008 and at which the Complainant was represented. This provides that the Complainant had two contracts of employment (1) Weekend Chef and (2) Casual Chef Dublin Relief Team. The Complainant signed the new contracts. This agreement resulted from a request from the Complainant in a letter undated in which he seeks to reduce his working hours. In relation to the relief contract the Complainant was required to phone a named Support Team Coordinator. The Respondent stated that in the 8 years since the Complainant has called twice to work relief hours and the last time was in 2009. The Weekend Contract which is for 16 hours was specified on the TUPE Spreadsheet. The Relief Contract is also on the Complainant’s Personal File which has been given to the Transferee.

The Respondent stated there had been no breach of Regulation 4, and Regulation 8.

On the basis of the evidence from both Parties I find as follows: 1. Both Parties confirmed that the Complainant worked weekends only, Saturday and Sunday, effective from 2008.

2. 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. The Complainant’s contract of employment existing on the date of the transfer was transferred to the Transferee on 25^th January 2016. I find there has been no breach of Regulation 4
3. (1) the transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of – (a) the date or the proposed date of the transfer (b) the reasons for the transfer (c ) the ;legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them (d) any measures envisaged in relation to the employees (2) The Transferor shall give the information in paragraph (1) to the employees’representatives, where reasonably possible, not later than 30 days before the transfer is carried out and, in any event in good time before the transfer is carried out.
4. ^th February 2016, that all the employees of the Transferor were informed at a meeting held on 18^th January 20216, which is more than 30 days before the Transfer was carried out. I find that the Respondent, as Transferor, did not breach Regulation 8 (1) or 8 (2).

Decision: CA-00003688-001-002-003

Section 41(5) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and on the basis of the evidence and my findings above I declare these complaints are not well founded.

Date: 15^th September 2016