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-00003160-001

14/03/2016

The Complainant was a catering Worker at a Dublin North   City Third Level Institution. The Institution –called here Institution A -   merged with a large North City University. The Catering Contract at   Institution A was transferred to the Catering Service of the University. The   Catering Company at Institution A told staff they were being transferred to   the University Catering Company in an abrupt and disrespectful manner. The Complainant’s   initial Employer – called here Employer A –failed to adequately address any   of the Complainant’s due concerns regarding her transfer, particularly her   concerns regarding her weekend shift. She only worked weekends. Her long and   dedicated service to Institution A was ignored and she was afforded no   dignity in the entire transfer process.

The Catering Company, Respondent Catering A, is a very   experienced Catering Company. They are well experienced in these types of   transfers of Undertakings. All legal requirements regarding notice and   consultations were observed. The Complainant’s weekend only working pattern   was made known to the incoming Catering Contractor for the University. Full details of all correspondence was   provided in evidence. They have no case to answer in regard to the Complainant’s   allegations.

The Respondent pointed to ADJ -00002774 and Labour Court   Appeal of same TU/1623 where a colleague of the Complainant made an identical   claim based on the same facts regarding the Transfer. The Labour Court did not find in the   claimants favour in that case. It was id   idem with the current case and the finding has to be seen as strongly   persuasive in the current case.

3:1      The law

The transfer of undertakings is governed in Irish law by   S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer   of Undertakings) Regulations 2003.

In relevant part it states

“(1) The transferor's rights and   obligations arising from a contract of employment existing on the date of a   transfer shall, by reason of such transfer, be transferred to the transferee.

The Regulations place an obligation on the   transferor and the transferee to take the following actions

•   (1) The   transferor and transferee concerned in a transfer shall inform their   respective employees' representatives affected by the transfer of -

(a) the date or proposed date of the   transfer;

b) the reasons for the transfer;

(c) the legal implications of the transfer   for the employees and a summary of any relevant economic and social   implications of the transfer for them

and

(d) any measures envisaged in relation to   the employees.”

3:2     In the case in hand the   Respondent pointed to the relevant documentary evidence and records of   meetings held. The Respondent did not   feel that they had been in any way disrespectful of staff. As a Catering   Contractor it was not in their interest to create bad feelings with staff who   might, in a turn of business, again become their employees.

All evidence pointed to the fact that the Respondent   discharged its obligations under the Regulations. It met with the Complainant   by way of a meeting with staff on 8th January 2016 and corresponded with her on   the 18^th of January 2016 setting out all of the information   relevant to the transfer and required by the Regulations. The Complainant at   the oral hearing questioned whether or not she had received the relevant   letter.

However in discussion I had to find, on the balance of   probability and the oral evidence that the Complainant was provided with the   letter dated 18th January 2016 and had attended meetings with the Respondent.   She was accordingly notified of and consulted with regarding the proposed   transfer.

Information Transferred

The Complainant stated that the Respondent did not   transfer all relevant documents to the other side. The weekend working   element was left vague.

The Respondent states that it provided all relevant   material that was on file relating to the Complainant including copies of all   contracts of employment. The Complainant’s weekend work was mentioned to the   new Contractors for the University.

The Respondent provided the Adjudicator with details of   the relevant documents that were transferred to the Transferee / University   contractor

Accordingly I found that there is no evidence before it   that the Respondent did not transfer all relevant information to the Respondent.

3:2     In summary   I found that the TUPE Regulations had been carried out in strict keeping with   S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer   of Undertakings) Regulations 2003.

Accordingly I found that the claim for breaches of S.I.   No. 131/2003 was not well founded.

Act

Complaint/Dispute Reference No.

Decision

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-00003160-001

Claim Dismissed.

TUPE Regulations /   S.I. No. 131/2003 complied   with by the Respondent.