ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005540

	Complainant	Respondent
Anonymised Parties	A Worker	A Swimming Pool Management Company

Complaint(s):

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-00007592-001	13/10/2016

Date of Adjudication Hearing: 02/05/2017

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41 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).

Background:

This is one of four claims taken against four different Respondents for breaches under the Transfer of Undertakings) Regulations 2003. It is accepted that a transfer of undertaking took place in March 2016. The Respondent cited in this complaint is the transferee company.

Summary of Complainant’s Case:

That the terms and conditions previously enjoyed under his old contract were not exactly transferred to his new contract with the Respondent.

Summary of Respondent’s Case:

That any terms and conditions that were enjoyed by the Complainant prior to the transfer occurring were immaterial to the case, because it was only those terms and conditions that pertained at the time of the transfer of the undertaking, that transferred. These were the terms agreed between the transferor company and the Complainant in January 2011.

That all the terms and conditions that the Complainant enjoyed under his contract with the transferor company were transferred and would continue to be enjoyed under his contract with the transferee company.

That he was pre-emptive in bringing this claim because he had not returned back to work (as he was on sick leave) since the transfer occurred and that no contract was given to him yet by the Respondent. Therefore he could not point to any term or conditions which would not be honoured by the transferor. This was because it was always the intention of the Respondent to honour all the terms and conditions enjoyed prior to the transfer.

In respect of each term and condition that was allegedly not being honoured in the transfer the Respondent gave the following undertakings:

The Complainant would be paid € 10.40 per hour.
His hours of work would be guaranteed at a minimum of 39 hours per week
He would receive 20 holidays per year
That his service would run from 14 September 2007, his date of commencement

Together with other terms and conditions that were applicable to his previous contract with the transferor company agreed in January 2011.

Decision:

Section 41 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.

Having heard the evidence I am satisfied that all the terms and conditions of the Complainant’s employment were transferred to his new employment contract and that this claim is not well founded.

I am also satisfied that this case was prematurely brought, in that the new terms and conditions of employment were not discussed or furnished to the Complainant prior to his going on sick leave, therefore he could not have known what the new terms and conditions of his employment might be.

However having heard the new terms and conditions at the hearing, I am satisfied that these are the same as that which he previously enjoyed.

For the above reasons, the complaint is not well founded and does not succeed.

Dated: 08^th June 2017

Workplace Relations Commission Adjudication Officer: Emile Daly

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