EMPLOYMENT APPEALS TRIBUNAL
CASE NO: TU47/14
APPEAL OF:
Diarmuid Bourke - Appellant
against the recommendation of the Rights Commissioner in the case of:
G4S Secure Solutions (Ire) Limited - Respondent 1
Noonan Services Group Limited - Respondent 2
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr J. Hennessy
Ms. P. Doyle
heard this appeal at Limerick on 13th January 2016, Cork on 23rd January 2017 and 6th April 2017
Representation:
Appellant: Mr. Daniel O'Gorman, O'Gorman, Solicitors, Munster House,75a O'Connell Street, Limerick
Respondent(s): IBEC,R1 Confederation House, 84/86 Lower Baggot Street, Dublin 2
Mr John Barry, R2, Management Support Services, The Courtyard, Hill Street, Dublin 1
This case came before the Tribunal by way of an appeal by the employee (appellant) against the decision of the Rights Commissioner (r1143505-tu-14/GC) under the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003.
Evidence heard on 13th January 2016:
Preliminary point background:
R1 who represents the first named Respondent contended that the initial claim/appeal was out of time as the claim/appeal document to the Workplace Relations Commission/Rights Commissioner is date stamped 01st April 2014 and the date of transfer was 23rd September 2013 and he posited that there should be exceptional circumstances:
“(6) A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.”
A1 who represents the Appellant contended that there were exceptional circumstances:
Due to bereavement.
That the Appellant liaised with a trade union at the time and the Appellant relied on the expertise of the trade union.
The Tribunal heard evidence from the Appellant as to the preliminary point: He explained that he was represented by SIPTU and he was copied e-mails that SIPTU and the second named Respondent had corresponded. As far as he was aware the appeal had been lodged in October 2013 and as far as he had been aware the appeal had been sent months previous to 29th September 2014.
The Appellant was cross examined by R1on the points.
Preliminary point determination:
The Tribunal unanimously determine that exceptional circumstances prevented the lodgement of the appeal. Accordingly, the appeal should be heard and evidence heard on the substantive point be heard on a further hearing date.
Hearing on 23rd January 2017 and 6th April 2017
Background to substantive case:
The appellant was an employee of R2 (based at Shannon) from 2007 to August 2013. In March 2013 he had sought a site transfer from R2 to a location closer to his home. He was successful in getting re-located to a Lidl site in Limerick in early August 2013 and worked there until he went on holidays a few weeks later. Correspondence was sent to him in early September regarding a TUPE by R2 but as he had move address he was unaware of the transfer until he received a text message from R1 looking for his size regarding his new uniform.
When he contacted R2 he was informed that they had lost the contract and he was being transferred to R1 under TUPE regulations on 23rd September 2013. He told the Tribunal that it was a surprise but not unusual and had happened on prior occasions. The appellant did not receive any hours of work at the Lidl site on his return from holidays and in effect lost his job. He gave evidence of the devastating effects this had on him and his family. He lost his home, had to borrow money to provide food and shelter for his family and neither party would even provide him with a P45.
Correspondence opened to the Tribunal showed that R1 refused to provide any hours of work for the appellant and refused to employ him under the TUPE legalisation. They stated that “he was not on site prior to the awarding of the contract and had only been placed on this site in the weeks prior to the transfer date and under TUPE did not come into scope for this transfer”. The also contended that an agreement existed with a Trade Union that only those who cover 50% or more of their shifts on a site over the immediate six months preceding the transfer, will transfer.
Determination:
The Tribunal are in no doubt that the appellant was entitled to be protected by the TUPE regulation and that R1 were his employer.
The employer made an assertion that there had been an agreement at national level between the union representing this employee and it relating to hours of work. No documentary evidence in support of this assertion was opened to the Tribunal. Accordingly, the Tribunal is not satisfied that any such agreement exists. It must follow that the employer cannot therefore rely on the employee being bound by any such agreement as a defence to the claim.
This assertion had a detrimental and negative impact on the employment of this appellant who effectively fell between two stools and lost his long term job at this particular site.
The Tribunal unanimously finds it just and equitable in all the circumstance to vary the decision of the Rights Commissioner and awards the employee €44,000-00 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)