ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005367

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

Date of Adjudication Hearing: 16/01/2017

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

Complainant’s Submission and Presentation:

These claims are in relation to a Transfer of a business from one owner to another.

The Complainant commenced working for the Respondent Transferor in October 1997.

Section 41(6) of the Workplace Relations Act 2015 sets out the time limit for lodging a claim with the Workplace Relations Commission (WRC). It provides

41 (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

41 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) but not later than 6 months after such expiration, as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

It is clear from this sub-section that the time limit is mandatory. There is discretion to extend the time for a further period not exceeding six months where reasonable cause prevented the presentation of the complaint within the initial six month period.

The date of the alleged contravention under the legislation is the date of the transfer of the business was either the 24^th December 2015 (Date of P45) or the 1^st of January 2016.

The claims were lodged with the WRC on the 13^th of September 2016.

The Complainant contends that the 27^th of April 2016 was the earliest date on which he became aware of the possibility that a transfer of undertakings had taken place.

The Complainant further contends that only following a retraction by his new employer (the Transferee) of his position in September 2016, did he have the knowledge to commence a claim with the Workplace Relations Commission.

The Complainant’s application is for an extension of time to when the complaints were lodged.

Respondent’s Submission and Presentation:

The Respondent denied that there had been any breaches in regulations and set out a chronological account of the exchanges that took place with the Claimant in the run up to the transfer and during the ensuing months and submitted that the Claimant was properly consulted prior to the transfer and was well aware of the transfer.

The Respondent submitted that the complaints CA-00006972-002 and CA- 00006972-003 are out of time.

Regarding complaint CA-00007809-001 the Respondent’s position is that there was not a dismissal and that a Transfer of Undertakings took place on the 1^st January 2016 to the Transferee.

Decision:

Section 41(4) 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.

I have reviewed the evidence presented at the hearing and note the positons of the respective parties.

Regarding Claims CA-00006972-002 and CA- 00006972-003

I find that the date of contravention of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 is not to be confused with the date of knowledge which applies is in certain personal injury cases, where time only begins to run from the date of knowledge.

There is no provision for the date of knowledge in the Workplace Relations Act 2015 or the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Time began to run from the date of the alleged contravention.

I accept the Complainant’s own evidence that

1. he had knowledge of the changes to his pre-existing terms and conditions from the start of January 2016.

2. he had knowledge of the written advice from the Transferor’s accountant in April 2016 that a transfer of undertakings had taken place and that the transfer of business included all staff obligations being transferred to the new owner.

In those circumstances the Complainant had the knowledge within the six month time period to lodge his claim.

An application was made for an extension of time.  The established test for deciding if an extension of time should be granted for reasonable cause is that formulated by the Labour Court determination WTC0338 (October 28, 2003) Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.

Here the test was set out in the following terms:

It is the Courts view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant's failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present s/he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

The Complainant put forward a range of reasons to excuse the delay and obtain an extension of time.

I have considered the evidence in this case and find that an extension of the time limit for reasonable cause does not arise because the complainant had within the six month period set out in   Section 41(6) of the Workplace Relations Act, the requisite knowledge to bring a claim. He was aware that his working hours had reduced and he was advised that a transfer of undertakings had taken place in April 2016. This is within the six month time period. The Complainant has not put forward a justifiable basis on which an extension of time could be granted in this case.

Therefore I have no jurisdiction to hear these complaints as they are out of time.

Regarding complaint CA-00007809-001, a “redundancy” situation is defined as

occurring when there is a dismissal of an employee by an employer.

The TUPE Regulations provide, in very basic terms, that the employees attaching to a business which is being transferred must transfer with the business to a new employer.

I find that the TUPE regulations do apply to this transfer and as there is no dismissal by the Respondent Transferor. The effect of the TUPE regulations is that pre and post transfer employment is continuous for the purpose of statutory entitlements.

This complaint is not upheld.

Dated:   05/04/2017