ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005825
Parties:
| 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-00008094-001 | 13/10/2016 |
Date of Adjudication Hearing: 02/05/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Location of Hearing: The Mullingar Park Hotel
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 cases taken under the Transfer of Undertakings) Regulations 2003 against four different Respondents, all alleged employers |
Summary of Complainant’s Case:
That the terms and conditions of his employment were not transferred when the transfer of undertaking occurred in March 2016. The cited Respondent is the transferor company. |
Summary of Respondent’s Case:
That this case is res judicata in that a previous adjudicator and the Labour Court on appeal both decided that the case was not well founded. Both found that the transferor company had discharged its obligations to inform the Complainant of the transfer of undertaking prior to it occurring. |
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.
There is no dispute that a transfer of undertaking occurred in March 2016. The Labour Court found in the case of TUD 16/21 the transferor company had discharged its obligations under the Transfer of Undertakings Regulations 2003 and I am bound by this decision. Therefore the case, insofar as it relates to the obligation to inform and advise the Complainant about the transfer prior to it occurring, is res judicata and I have no jurisdiction to entertain a claim on this point.
Insofar as any other allegation of breach under the TUPE regulations is claimed and not previously aired before, these relate to how the transferee company dealt with the transfer of the terms and conditions after the transfer occurred. Therefore I find that there is no evidence to show that this Respondent acted in breach of its obligations to the Complainant under the TUPE Regulations. Consequently this complaint is not well founded and does not succeed.
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Dated: 09th June 2017
Workplace Relations Commission Adjudication Officer: Emile Daly
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