ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000582 / ADJ 00000578
Complaint(s)/Dispute(s) for Resolution:
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-00000802-001 | 12/11/2015 |
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-00000975-002 | 12/11/2015 |
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-00000802-003 | 12/11/2015 |
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-00000975-004 | 12/11/2015 |
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-00000802-005 | 12/11/2015 |
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-00000802-006 | 12/11/2015 |
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-00000802-007 | 12/11/2015 |
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-00000975-008 | 12/11/2015 |
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-00000802-009 | 12/11/2015 |
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-00000975-010 | 12/11/2015 |
Date of Adjudication Hearing: 16/03/2016
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The Claimant commenced employment with the school on I September 2009. In March 2014, they entered into a contract with a cleaning company and two employees including the Claimant transferred to the cleaning company in line with TUPE legislation.
In June 2015, the Claimant received a letter from employer, the cleaning company informing her that her employment would transfer back to her first employer the school in line with TUPE legislation and she was issued with her P45. When she contacted the school she was told that she would have to attend an interview. She was unsuccessful in her interview. They denied that any transfer under TUPE to place.
She also denies that the cleaning company offered her suitable alternative employment.
Respondent’s Submission and Presentation:
The school submitted that the onus is on the Claimant to show that the TUPE Regulations are applicable. It is submitted that there is no evidence whatsoever that such are applicable. In fact the evidence suggests that the cleaning company were her last employer. Therefore the complaint is misconceived.
The school’s position is supported through the correspondence in the matter, the holding of an open competition, the fact that the Claimant was paid by the cleaning company and the fact that no ‘resources’ whatsoever transferred between it and the cleaning company which could conceivably draw the conclusion that the TUPE Regulation apply. In addition, the school’s position is clearly supported by European and national case law in the area which firstly establishes that the transfer of undertaking provisions are not applicable in the context of a specific works contract, and secondly, where no actual transfer of resources occurred.
The cleaning company submitted that they took the contract from the school under the TUPE Regulation and under their instruction accepted all the staff under this legislation. In June 2015 they terminated the contract and clarified that they would be the new employer. Therefore they are responsible under the TUPE Regulations.
In any event the cleaning company offered to meet the Claimant to discuss suitable alternative employment but she declined.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
Did a transfer of undertaking take place within the meaning of the TUPE Regulation?
Legislation involved:
S.I. 131 of 2003
Decision:
I have considered the submissions of all parties. THE ECJ stated in Suzen (Case c-13/95 {1997} ECR I-1259):
‘that the mere loss of a service contract to a competitor cannot therefore, by itself, disclose the existence of a transfer’ under TUPE and that in order to establish TUPE that there must have been a transfer to the new contractor ‘of significant tangible or intangible assets or the taking over by the new employer of a major part of the workforce, in terms of numbers and skills’.
The EAT in Cavan Industrial Cleaning Services –v- 8 employees (Case TU29-TU36/2013) stated;
The Court emphasizes that the mere loss of a service contract to a competitor cannot therefore by itself, disclose the existence of a transfer within the meaning of the Directive. In those circumstances, the service undertaking previously entrusted with the contract does not, on losing a customer, thereby cease fully to exist, and it cannot be considered that a business or part of a business belonging to it has been transferred to the new awardee of the contract.
For the above reasons I find that a transfer did not take place between the Respondents in June 2015. I do not find the claim well founded and it fails.
Dated: 5th January 2017