Complainant

Respondent

Anonymised Parties

Pest control technician

Pest control service provider

Representatives

Self -represented

IBEC

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-00012620-001

18/07/2017

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-00012620-002

18/07/2017

The respondent corrected the company name and same has been amended.

Complainant was employed as a pest control technician with the respondent from 1/7/2004- 18/1/2017 when the transferee took over the business. He continues to be employed with the transferee. His gross salary is €2750 per month.

He is alleging an outright absence of consultation as required under regulation 8, S.I No 131/2003- European Communities (Protection of Employees on Transfer of Undertakings), Regulations 2003.

The respondent failed to observe the requirement specified in regulation 8 of S.I No 131 2003 to inform and consultthe complainant on the transfer “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”

He was informed of the transfer and conditions attaching to same on 18/1/17 a day after the transfer occurred.

The complainant advises that the first he heard of the transfer was on the 18/1/17, when he was called to the office of his former employer and told that he no longer worked for him but would now work for the transferee who took over the company on 17/1/17.

The complainant rejected the respondent’s assertion that there was no change in his working conditions; he cited reporting to a different manager, catering for different customers and operating out of Naas as opposed to his former base which was in Santry. He lives in Wicklow. His original contract didn’t identify a base.

The respondent company, a family owned business, was established in Dublin in 1966.

In late 2016 the respondent began discussions with the transferee about selling their pest control section of the business to them. The respondent’s representative emphasised the sensitivity and volatility surrounding the sale of the business. Discussions and negotiations were conducted with the utmost secrecy and confidentiality so as to protect the interests of the parties and the shareholders and creditors. Non – disclosure agreements were signed by the parties to the sale.

On the 17th January, the transferee acquired the respondent’s pest control division with immediate effect.

On the 18th January, the respondent invited the employees including the complainant to a meeting. The respondent wrote to all staff assuring them that they would transfer into the new employer and that all their terms and conditions would remain intact. A question and answer document accompanied this letter itemising specific conditions which would remain unchanged. Both documents were submitted at the hearing.

The respondent’s representative argues that not one of the complainant’s conditions changed by virtue of the transfer nor did he suffer any detriment.

The respondent’s representative relied on an Adjudication Officer decision (ADJ 7365) which found that in an identical situation breaches, yes, occurred but they were what were termed technical breaches. The decision referenced Donovan in Employment Law, 2016, Nutshells Thomson Reuters, page 52, which stated

“There will be situations where it is not practicable, reasonably or otherwise to comply with Art 8 because the transfer will occur only after the expiration of the 30 days or with no time, good or otherwise, before the transfer is carried out. In these circumstances, there is a technical breach and the adjudication body should simply direct that the regulation be complied with but make no award for compensation”

The respondent stated that the venture could have fallen through with jobs endangered as a result and it was this that led them to postpone consultation until after the transfer had been agreed.

The complainant rejected the respondent’s assertion that there was no change in his working conditions; he cited reporting to a different manager, catering for different customers and operating out of Naas as opposed to his former base which was in Santry. He lives in Wicklow. His original contract didn’t identify a base. However, he did acknowledge that he is doing the exact same job and that he has experienced no change in his terms and conditions. The changes cited are more of an administrative nature. The complainant did not provide any evidence to show that the changed base operated to his detriment or that his travel time or costs had increased.

I accept therefore that there was no material detriment suffered by the complainant.

CA -00012620-001.

The claim is well founded. I find that there was a technical breach of Section 8 of S. I No 131 of 2003. This must be brought to the attention of all in the management of the respondent company.

CA -00012620-002.

The complaint is well founded. It is a technical breach and no compensation is awarded

Complaint CA-00012620-001.

The complaint is well founded. It is a technical breach and no compensation is awarded.

Complaint CA-12620-002.

The complaint is well founded. No compensation is awarded as it is a technical breach.

Transfer of Undertaking; no detriment suffered; technical breaches: no compensation