TU163/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

TU163/2015

APPEAL(S) OF:                                                                                            

Business Mobile Security Services Limited T/A Senaca Group

– appellant

V

Gerard Finn

– respondent

against the recommendation of the Rights Commissioner in the case of:

Gerard Finn

V

Senaca Group

under

PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms O. Madden B.L.

Members:        Mr F. Cunneen

                        Mr N. Dowling

heard this appeal at Dublin on 19th July 2016

Representation:

_______________

Appellant(s) :              Ms Pauline O’Hare, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

Respondent(s):            Ms Vanessa Costello, ESA Consultants, The Novum Building, Clonshaugh Industrial Estate, Dublin 17

This case came before the Tribunal by way of an employer appealing the recommendation of a Rights Commissioner ref: r-152863-tu-15/JW.

The decision of the Tribunal was as follows:-

The Rights Commissioner made an award of €967.77 in respect of holiday pay under the Protection of Employees on Transfer of Undertakings Regulations 2003 against the appellant company. The company disputed that it was the liable party as there had been a transfer to a second company. The second company was not named on the Rights Commissioner proceedings and was not present at that hearing. It is noted that this second company was not put on notice of the present hearing and so we not represented. The employee’s representative could not provide an explanation for this.

The appellant company argued that Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (.I No. 131 of 2003) (“the regulations”) provides that “The transferors rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee”. The appellant company therefore argued that all rights and liabilities arising from the contract of employment existing at the date of the transfer, transferred to the second company including the employee’s outstanding holiday pay. Furthermore it was argued that the appellant company could not have paid the holiday entitlement as no dismissal had occurred pursuant to Section 23.1.A of The Organisation of Working Time Act 1997. The employee was out of time to make a claim under the Organisation of Working Time Act against the second company, (the current employer).

The employee argued that the appellant company, also the transferor in this instance, delayed in providing information on the transfer to the transferee and as such should be the liable party under the regulations. Section 21.4 of the Employees (Provision of Information and Consultation) Act 2006 provides that “A failure by the transferor to notify the transferee of any such right or obligation shall not affect the transfer of that right or obligation and the rights of any employees against the transferee or transferor in respect of that right or obligation”.

The appellant agreed that there was some delay due to data protection issues, but the information was provided on 10^th December 2014 within the leave year. Notwithstanding this delay, the appellant company argued that they had paid the full amount due for hours worked to the employee before the transfer took place. It is accepted that the company’s annual leave year runs from 1^st January to 31^st December and at the date of the transfer the employee had received 12.11 day or 96.88 hours out of the permitted 20 days of annual leave.

Determination:

The provisions of Regulation 4, The Organisation of Working Time Act 1997 and the Employees (Provision of Information and Consultation) Act 2006 have been noted above. The Tribunal are not satisfied that a failure by the transferor to exchange information and documents relevant to the transfer within the Statutory timeframe nullifies the effects of the transfer i.e. the Tribunal are satisfied that all rights and obligations arising from the contract of employment existing on the date of a transfer, by reasons of such transfer, were validly transferred to the transferee. While the Tribunal acknowledges the employee is entitled to the full annual leave due to him under The Organisation of Working Time Act 1997, the Tribunal are not satisfied that the appellant company is the liable party in these circumstances. The Tribunal upsets the Rights Commissioner Recommendation and finds in favour of the appellant.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)