ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005759

Complaint:

Date of Adjudication Hearing: 21/04/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Catering Assistant from February 2009. Her employment was transferred under a TUPE on 1^st September 2016 to the Respondent. The Complainant left her employment on 18^th October 2016 where the Complainant alleged that her new employer (Transferee) did not observe the terms and conditions transferred from her previous contract.

The Complainant’s rate of pay was €370 gross per week. She worked a 39 hour week.

Summary of Complainant’s Case:

The Complainant worked at a café located in a university and where she had been employed for the previous seven years. The Complainant submitted that following the transfer of her employment she did not receive her break times. She also maintained that stock was unavailable to do her job, there were staff shortages, she was regularly moved to different jobs onsite, and her new managers were unresponsive when she approached them to have her concerns resolved.

The Complainant further submitted that she found the new work arrangements very stressful on a daily basis. She maintained her duties changed in that she had to transfer stock from another location on the site on a trolley, and there was less staff working with her where she maintained previously there would have been four staff in the morning and one at night but that had changed to two in the morning and one in the afternoon. In this regard, she argued that there was ever anyone to cover breaks. She also alleged that she received no health and safety training or manual handling, and there was no first aid box on site.

The Complainant also maintained that she was not able to view her payslips as the manager never set up her payment correctly, and that she did not receive payment for her first week when she returned to work.

As a consequence, the Complainant said she contacted the HR department in the University but nothing changed. She submitted that she had no choice but to leave as it was causing her anxiety. She is now working back with her former employer in a different location on the campus but on a minimum wage.

With regard to the transfer, the Complainant acknowledged at the hearing that she was told of a possible transfer of the business in or around 28^th June 2016, that she would have receive a letter on 19^th August 2016 about the change from her former employer, but her first contact with the transferee was on 1^st September 2016. As such she maintained her new employer did not observe the obligatory information an consultation process.

She also acknowledged that she was not due to return to work until Mid-September, and that she did attend a briefing with the Respondent about the transfer on 1^st September 2016.

Summary of Respondent’s Case:

The Respondent acknowledged that the Complainant became an employee of the Respondent as a Catering Assistant on 01^st September 2016 following a Transfer of Undertakings, and where the Complainant had continuous service with her previous employer since 03^rd February 2009. There were two employees involved in the Transfer of Undertaking

The Respondent submitted that on 01^st September 2016, its HR Business Partner, and its Operations Manager, met with the Complainant and her colleague to explain the “on boarding” process. They shared information and provided a presentation to the Complainant and her colleague. At this meeting the Complainant was provided with “personal details” forms to complete, and copies of the Transferee’s policies and procedures. The Respondent submitted a copy of the personal details form signed by the Complainant at this meeting, and the other information provided.

The Respondent maintained that the Complainant submitted her resignation one month after the transfer took place and informed her manager that she would be taking up a new position with her former employer on another site. The Complainant completed her notice period and her last day of employment was 18^th October 2016.

The Respondent challenged the Complainant’s assertion that she was left with "no choice but to leave", as she did not exhaust, or even initiate, the Respondent’s internal grievance procedures prior to resigning. The Respondent maintained that the Complainant was provided with a copy of these procedures when she was met in September 2016. Furthermore, the Respondent advised that when the Complainant resigned from her position she discussed her decision to accept another job opportunity with her manager and did not raise any concerns at that time. The Respondent advised that it was only on 06^th November 2016 that the Complainant submitted her complaint to the WRC, and this was when she first raised a number of workplace concerns. These concerns referred to break times, limited stock and storages, staff shortage, moved to different locations on campus, communication issues, access to pay slips and training. The Complainant did not respond to an invitation from the Respondent to address her concerns.

The Respondent also indicated that concerns raised by Complainant were reviewed and rectified when they were brought to the Respondent's attention by another colleague who is still in employment. The Respondent submitted that had these issues been brought to the Respondent's attention by the Complainant or her colleague during the Complainant's employment they would have been addressed at that time.

Notwithstanding, the Respondent strongly contended that none of these matters are covered by Regulation 4(1) of S.I. No. 131 of 2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 as they occurred after the TUPE date. It maintained that it adhered in full to its obligations under the provisions of S.I. No. 131 of 2003.

With regard to its TUPE obligations, the Respondent contended that the Complainant did not submit as part of her original complaint to the WRC that it allegedly failed to observe the Information and consultation period set out at regulation 8 (3), i.e. a requirement for the transferee to give the information in paragraph to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment

The Respondent argued that this complaint was raised for the first time at the Adjudication hearing, and therefore it is outside of the 6-month time frame for referring a complaint under this legislation. Accordingly, the Respondent submitted that that there is no jurisdiction to hear this complaint as it was new.

In this regard the Respondent referred to the legislation (as amended by the Workplace Relations Act 2015) and advised that An employee ... may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee" and that "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 ofthe period of 6 months beginning on the date of the contravention to which the complaint relates". The Respondent also argued it is clear from the case law that any amendment of the original complaint form can only occur in limited circumstances. It mentioned that this has been considered by the Labour Court in a number of cases and the Court have taken their direction from the Supreme Court case of O'Leary v Minister for Transport [I.L.R.M 132.]. The Respondent contended the Adjudicator should not proceed to issue a decision under Regulation 8(3). The Respondent maintained that it was abundantly clear that the nature of the complaint referred to the WRC relates to events post the transfer only.

Without prejudice to this position the Respondent acknowledged that there were some minor mobilisation issues onsite relating to staffing, stock levels and administrative issues which have since been addressed.

The Respondent submitted that it adhered in full to the requirements of Regulation 8(3) regarding the provision of information and consultation in that it provided the requisite information to the employees affected by the transfer. It acknowledged there was a significant delay in finalising the commercial contract with the transferee site, and the Respondent submitted a commercial agreement, signed on 26^th September 2016, and where as a consequence of this delay it was not in a position to confirm if the unit where the Complainant worked would have been opened when the transferring employees returned to work. The Respondent therefore was not in a position to inform the Complainant during the presentation of 01^st September 2016. The Complainant and her colleague were offered alternative work in another unit at the site when they returned to work on 19^th September 2016. Accordingly, the Complainant did experience some unavoidable upheaval initially.

The Respondent further submitted that its obligation to provide the date or proposed date of the transfer; the reasons for the transfer; and the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee were covered in the presentation delivered on 1^st September 2016 and the information pack it provided where matters including payroll, benefits and the transfer itself were covered. In this regard the Respondent maintained that it fully complied with their obligations under the Transfer of Undertaking Regulations by consulting with the transferring employees as soon as reasonably practicable.

Furthermore, it was argued by the Respondent that the Complainant's contractual "place of work" remained and no change to this condition of her employment (i.e. work location) arose.

In response to the allegation that the Complainant did not receive payment in line with her contract of employment for three weeks after transferring to the Respondent, the Respondent maintained that the transfer took place on 01^st September 2016 when the Complainant was on a period of temporary lay-off and during which time she was not paid by the Respondent. The Complainant returned to work on 19^th September 2016 and as per her contract of employment ("you will be paid weekly in arrears") her first salary should have been transferred to her bank account on 29^th September 2016. Unfortunately, due to a genuine clerical error this payment was not processed on that date. As soon as it came to the attention of management it was raised with the Payroll department and the Complainant received all monies owed to her in the next Payroll cycle which was the following week (06^th October 2016). Whilst asserting that what occurred was a clerical error and not a deliberate failing by the Respondent to observe the terms and conditions arising out of the Complainant’s contract of employment, the Respondent subsequently advised that the Complainant incorrectly received payment on 22^nd December, 29 December 2016 and 05 January 2017, due to an administrative error in processing her as a leaver on the payroll system in October 2016. This amounts to a net overpayment of €809 which has never been recouped from the Claimant.

Findings and Conclusions:

The Complainant submitted that contrary to S6 of SI 13/2003 her terms and conditions of employment were deteriorated as a consequence of the transfer of her employment, and that the Respondent failed to meet its obligations to protect these terms and conditions. The Complainant also submitted that it was not provided with the information and consultation required under S8 of the regulations

The Respondent argued that the complaints raised by the employee referred to matters after the transfer took place and as such they are not covered under the TUPE Regulations. The Respondent further argued that the original complaint form submitted by the Complainant did not refer to an alleged failure for it to provide information and consultation about the transfer. As the complaint regarding failure to provide information in accordance with the regulations was only raised at the Adjudication hearing the Respondent also argued it was outside the six month timeframe to present a complaint and therefore should not be entertained.

Section 4(2) of the Regulations requires that following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Section 5 (3) of the regulations state that if a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

Section 8 of the regulations requires the Transferee to provide the employee with information 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.

Having considered the evidence presented I am satisfied that the Complainant, who was unrepresented, did raise a complaint regarding all aspects of her transfer. As such I am satisfied her complaint was made in time in accordance with S10 of the regulations. Whilst the matter of not being provided with information prior to the transfer was not specifically mentioned in the complaint form, it was submitted at the hearing by the Complainant that what contributed to the alleged deterioration of her working conditions was that she had not been properly informed of the transfer.

Having carefully considered the evidence I am satisfied that the Complainant was not due to come back to work until mid-September 2016, and that prior to her return to work the Respondent did meet with her on 1^st September 2016, and did provide the Complainant with the required information in relation to the transfer in a briefing and power point presentation. Whilst I have no doubt all the information that was required to be provided was given verbally at the meeting, there was no evidence provided to confirm the Complainant received the required information in writing pertaining specifically to (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. I am satisfied that the evidence confirms the Complainant did sign a personal details form at the briefing. However, whilst a detailed briefing took place, no evidence was provided to confirm the Respondent met its obligation to provide the required information in writing. I therefore find the Respondent failed to meet all its obligations under S.8 of the Regulations.

With regard to a deterioration in the Complainant’s terms and conditions of employment, evidence presented substantiated that the Complainant was not due to return to work until mid-September, and when she did return the Respondent was still in the process of finalising the transfer arrangements and operating the coffee dock. The Respondent has acknowledged the situation was not ideal, but when it became aware of the issues from another employee it addressed them and they were resolved, albeit after the Complainant had left. Also, due to a clerical error the Complainant was not paid for her first week back.

The Respondent has submitted that it did not receive any grievance from the Complainant and in addition when she advised her manager that she was leaving to return to her former employer she did not indicate there were any concerns regarding her terms and conditions of employment.

Whilst it is understandable that the Complainant would have been concerned about these matters, particularly as the coffee dock she had worked in was not fully functioning when she returned in September, and the fact she was not paid on time for one week, I am satisfied that on the balance of probability these issues related to teething problems rather than an attempt by the Respondent to avoid its obligations to maintain the Complainant’s terms and conditions of employment. Indeed, the errors also impacted on the Respondent as it overpaid the Complainant after she left, and did not seek a return of this overpayment. I also note that the Complainant did not progress her concerns through the Respondent’s grievance procedures.

Based on a consideration of the evidence presented, it would be unreasonable to conclude that the working conditions has substantially deteriorated to the point that the Respondent failed to meet it obligations under S.4 of the regulations. I therefore do not uphold this complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 10 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that I make a decision in relation to the Complaint, and declare that the complaint is or, as the case may be, is not well founded.  

In the event that I find a complaint is well founded I can require the employer to comply with the Regulations and, for that purpose, to take a specified course of action. Or I can require the employer to pay to the employee compensation of such amount (if any) as in my opinion, is just and equitable in the circumstances, but in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and, in the case of a contravention of any other Regulation, not exceeding 2 years remuneration.

As I have found the Respondent has contravened S.8 of the Regulations, in that the Respondent failed to provide the required information in writing to the Complainant despite providing the Complainant with a detailed briefing on 1^st September 2016, I must decide what compensation is equitable and just. As the Respondent overpaid the Complainant in error by €809 gross in December 2016 and January 2017, and has not sought a refund of this overpayment, I believe that whilst the Respondent is in contravention of S.8 of the regulations under the circumstances it is equitable and just not to award a financial compensation on this occasion.

Dated:   24^th August 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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