EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
TU20/2011
APPEAL OF:
Momentum Support Services (Ireland) Limited T/A Momentum
- appellant
against the decision of the Rights Commissioner in the case of:
Annie Thomas
- respondent
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr C. McHugh
Mr J. Jordan
heard this appeal at Wicklow on 14th March 2013.
Representation:
_______________
Appellant: Ms. Mairead Crosby, IBEC Confederation House, 84/86 Lower Baggot Street, Dublin 2
Respondent: Ms. Geraldine Malone, Siptu, Membership Information & Support Centre, Liberty Hall, Dublin 1
This case came to the Tribunal by way of an appeal by the appellant (the employer) against the Decision of the Rights Commissioner ref. r-101356-tu-10/GC
The decision of the Tribunal was as follows:-
Determination:
The Tribunal has considered the evidence adduced in the course of this hearing. The respondent gave evidence to the effect that it had approached a potential client with a view to securing a contract for cleaning on a site held by the client in Bray. The respondent knew that the contract was being carried out by its competitor in the contract cleaning market namely NCS. The respondent knew or ought to have known that NCS had operated the cleaning contract on the site for at least eight years and perhaps many more.
The client was impressed by the respondent’s package and awarded the cleaning contract to the respondent. The client never indicated nor was it ever asked its view concerning the contract cleaning staff who had worked on its premises for up to eight years in the case of the claimant herein.
Previously unaware that they had lost the contract, NCS was given notice of one month to finish up on the client’s site.
There then followed an exchange of correspondence between the two contract cleaning companies NCS and the respondent wherein NCS asserted that this was clearly a situation where a legal transfer of an undertaking or business from one employer to another has taken place and therefore the protection afforded by the Transfer of Undertaking Directive applicable under Irish law applied to its on-site workforce of which the claimant was one.
The claimant confirmed in her evidence that she was given to believe that she would be automatically transferring to the new contract cleaning company which had taken over her job. Correspondence to this effect was opened to the Tribunal.
In her evidence the claimant indicated that she would have had no difficulty with the change in employer as she liked her work which was convenient, which she had performed for years and which was manageable to her. In short, she fully expected to transfer to the respondent company with her terms and conditions intact.
For reasons the Tribunal cannot know, NCS failed to pursue the issue of transferring its employees across to the respondent company and simply acquiesced to the respondent’s assertion to the effect that the “TUPE” did not apply and the respondent did not wish to take on any NCS’s employees.
The failure to challenge the respondent’s assertion that TUPE had no place in this transaction was ultimately to prove disastrous to the claimant who lost her work at this site after eight years loyal service. The claimant was never given comparable work again and made the case that she suffered loss as a result.
The Tribunal must now look at the respondent’s unilateral decision to declare this situation as not being subject to “TUPE” and determine whether the consequent failing by the respondent to have any regard for the claimant was correct in law.
The respondent makes the case that no asset tangible or intangible was to transfer and that by reason of this fact the respondent may decide not to take on any of the staff either. It is quite clear from the letter of 30th April 2010 that the respondent is opting out of the regulations based on the respondent’s own decision not to take on any of the employees currently performing the contract.
What is clear from even the landmark Suzen case [1997] IRLR 255 is that there may be a transfer of an undertaking although there has been no transfer of assets and that there may too be a transfer where there is no contractual link between the transferor and transferee. A transfer may occur even where the parties have not intended to as Mr. Justice Morrison put it in ECM –v- Cox [1998] IRIR 416
“It can be said with confidence that neither the presence nor the absence of any one factor will demonstrate that a transfer of undertaking has or has not occurred. It is a question of looking at the facts and keeping an eye on the purpose of the protection given by the Directive”.
Mr. Justice Morrison went on to say
“The Directive does not aim to protect employees from the chill wind of redundancy, it does seek to protect them when the business to which they were dedicated has been transferred and a new employer has come on the scene”.
The issue of dedication is noteworthy and was emphasised in the Schmidt Case [1994] IRIR 302.
The Tribunal is perfectly satisfied that this was a situation wherein the issue of TUPE would have been forcibly applied had the NCS taken up the issue. The evidence suggests that the respondent and NCS compete for the same work and always try and keep their relations on an even keel. In these circumstances, this commercial necessity had a detrimental and negative impact on the employment of this claimant who effectively fell between two stools and lost her long term job at this particular site.
The Tribunal affirms and supports the findings and recommendation made by the Rights Commissioner and affirms the compensation lump sum awarded in respect of breaches of Regulations 4 and 8.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)