Complainant

Respondent

Anonymised Parties

Merchandiser

Retail

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00010103-001

07/03/2017

The Complainant was employed with the Transferor, named, from 11^th October 2013 until his employment ceased on 30^th November 2016. He was paid €9.15 an hour and he worked for 6 hours a week in a named retail outlet – 3 hours on a Thursday and 3 hours on Friday morning. The Complainant referred a complaint to the Workplace Relations Commission on 7^th March 2017 alleging the named Respondent –the alleged Transferee did not consult the Complainant in relation to this transfer.

The Complainant stated that he worked for the named Transferor from 11^th October 2013, working six hours a week in a specified Store. On 30^th November 2016 he was informed by the Transferor that another named Company, the Respondent, was now taking over 34 Stores in Ireland, including the store the Complainant was assigned to work in. He stated that the Transferee was informed on numerous occasions that that the Complainant also had to transfer and continue working in the store he was assigned to but now with the Respondent Company. The Complainant stated that he had numerous phone calls to the Managing Director, named, of the Transferee and requested an answer as to why he had not transferred. His last phone call was on 9^th December 2016. He never got a satisfactory answer and neither have his former Employer.

The Respondent Company employs 22 full-time and 426 part-time staff. The Respondent stated that in November 2016 they were requested to provide support in stocking shelves with merchandise in 37 Stores, including the store the Complainant worked in. The Respondent disputed there was any transfer of undertaking and asserted that any such element of work that may have been carried out previously by the named “Transferor” ceased by virtue of termination of that particular business relationship. The Respondent stated the first it became aware of any potential issue in respect of an alleged TUPE was on 9^th December 2016 when they received correspondence from the alleged “Transferor” relating to an alleged transfer of employees to them.

The Respondent argued that the first issue to be addressed was to establish the existence of a Transfer and they referenced the decision of the ECJ in Suzen. The Respondent referenced a decision of a Rights Commissioner and also a Decision of the EAT in support of their contention that no transfer of an Undertaking took place.

On the basis of the evidence and a written submission from the Respondent I find as follows-

Regulation 3(1) of S.I. 131 of 2003 provides as follows- These Regulations shall apply to any transfer of an undertaking, business or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger and “transfer” means the transfer of an economic entity which retains its identity” and “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity”.

The facts are that the “Transferor” had a contract with a named Client to provide services to its 106 stores nationwide. The “Transferee” secured the Contact from the Client in relation to 37 of the 106 Stores, including the Store where the Complainant worked in the specified location in rural Ireland. The Complainant worked 6 hours each week, three hours on a Thursday and three hours each Friday. The facts show that the “Transferee” carried on the same services to the Client in the 36 locations as that previously done by the “Transferor”.

I refer to the decision of the Court of Justice of the European Union in Case C-340/01 Carlito Abler and Others v Sodexho in which the Court held as follows – 41.However it is clear from the wording of Article 1 of Directive 77/187 that it is applicable whenever, in the context of contractual relations, there is a change in the legal or natural person who is responsiblefor carrying on the business and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking, regardless of whether or not ownership of the tangible assets is transferred……42. The fact that the tangible assets taken over by the new contractor did not belong to its predecessor but were provided by the contracting authority cannot therefore preclude the existence of a transfer within the meaning of Directive 77/187. This Directive was amended by Council Directive2001/23 of the EC but this has not altered the scope of Directive 77/178 . 43…….Article 1 of Directive 77/187 must be interpreted as applying to a situation in which a contracting authority which had awarded the contract for the management of the catering services in a hospital to one contractor terminates that contract and concludes a contract for the supply of the same services with a second contractor, where the second contractor uses substantial parts of the tangible assets previously used by the first contractor and subsequently made available to it by the contracting authority, even where the second contractor has expressed the intention not to take on the employees of the first contractor”.

I find that there was a Transfer of Undertaking as defined by S.I. 131 of 2003 and taking into account the decision of the CJEU as quoted above.

TUPE – CJEU Case C=-340/01