EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Martin Sadlier, TU162/2015
against the recommendation of the Rights Commissioner in the case of:
Redbrick Construction Limited
Savills Management Resources Ireland Limited
Savills Commercial (Ireland) Limited
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C.
Members: Mr. C.A. Ormond
Mr. A. Butler
heard this appeal in Dublin on 7th December 2016
and 9th February 2017
and 20th March 2017
Representation:
Appellant: Mr. Frank Drumm BL instructed by
Mr Peter McKenna, McKenna Durcan,
66 Lower Leeson Street, Dublin 2
Respondent: Mr. John Dunne for Mr. Peter McInnes, McInnes Dunne, Solicitors,
Lower Ground Floor, 78 Merrion Square, Dublin 2
This case came the Tribunal as an employee appeal under S.I., no. 131 of 2003 European Communities (Protection of Employees Rights on Transfer of Undertakings) Regulations 2003 against Rights Commissioner Decisions r-146869-tu-14lDI and r-146864-tu-14lDI.
Re: Rights Commissioner Decision r-146869-tu-14lDI
Early in 2009 the appellant took up employment with the McG group as a residential caretaker at the BC site. The parties were in dispute as to whether the appellant’s employment transferred to SCIL or SMRIL (both being internal companies within SAV) [a parent property group]... The appellant received an annual salary and was provided with an apartment when his employment ended.
In early April 2014 the appellant was told that changes would occur to his employment. Management told him that his role risked redundancy and, before mid-April, he was put on one month’s garden leave before redundancy. The appellant’s solicitor engaged with that of the respondent.
Under transfer of undertakings legislation the appellant sought redress on the grounds that the respondent had dismissed him to facilitate the sale of the undertaking to RCL after the appellant’s dismissal.
The appellant’s case at first instance as interpreted by the Rights Commissioner was that SCIL had been his employer and, in this regard, it relied on an end-August 2012 letter which confirmed that the appellant’s employment transferred from the McG group to the respondent (SCIL).
The appellant was employed as a live-in residential caretaker at the premises at Bailey’s Court, Dublin 1 (the Premises). Upon the sale of the Premises in August 2014, the undertaking and economic entity that was the Caretaking services transferred to RBL (not the formal name). The transferee had employed a full-time person to provide the caretaking services previously performed by the appellant.
The respondent (the transferor) now no longer had responsibility for the undertaking which the appellant was previously employed to perform prior to his unfair dismissal in contemplation of the transfer.
The caretaking services were still provided at the Premises and the new caretaker now lived at the Premises also as a residential caretaker. The appellant submitted that the activities-performed post-transfer were similar to those carried on before the transfer using assets that the appellant would have used e.g. keys to the complex, trailers, ladders, CCTV, digital video recorders and equipment for the collection of waste.
The appellant contended that his dismissal was in direct contravention of the provisions of Regulation 5 (1) of the 2003 Regulations.
Re: Rights Commissioner Decision r-146864-tu-14DI
Early in 2009 the appellant took up employment with the McG group as a residential caretaker at the BC site. McG later went into receivership. In mid-August 2012 the appellant’s employment transferred. The appellant received an annual salary and was provided with an apartment when his employment ended.
In early April 2014 the appellant was told that changes would occur to his employment. Management told him that his role risked redundancy and, before mid-April, he was put on one month’s garden leave before redundancy. The appellant’s solicitor engaged with that of the respondent.
Under transfer of undertakings legislation the appellant sought redress on the grounds that the respondent had dismissed him to facilitate the sale of the undertaking to RCL after the appellant’s dismissal.
The appellant’s case at first instance as interpreted by the Rights Commissioner was that the appellant was employed by SMRIL as a live-in residential caretaker which the respondents were contracted by the receiver to supply. Upon the sale of the premises in August 2014 the undertaking and the economic entity that was the caretaking services for the Premises transferred to a company (here referred to as RBC) which had subsequently availed of a full-time employee to provide caretaking services previously performed by the appellant. The work came to be carried out using core caretaking assets previously used by the appellant that had transferred such as keys to the complex, trailers, ladders, CCTV, digital and video recorders and equipment for the collection of waste.
The appellant’s employment was submitted to have been terminated in anticipation of or to facilitate the transfer of the undertaking. The appellant submitted that the respondent was in breach of Regulation 5 (1) of the 2003 Regulations which prohibited dismissals linked to a transfer of an undertaking.
The respondent’s case at first instance as interpreted by the Rights Commissioner was that the development in which the appellant worked was formally owned and managed by the McG group. Following the appointment of a Receiver to that Company in early 2012, the respondent acquired the management part of its business in relation to that site. The appellant’s employment transferred to the respondent as part of the transfer of the undertaking.
Hearing of 2th March 2017:
The Tribunal heard evidence from CN, who is the head of residential listings. She explained that in November 2014 the owners asked them to use RB as a management / maintenance subcontractor. The Appellant then transferred to SMG, and the Appellant was involved in duties such as rent collecting, changing light bulbs and light maintenance.
However the collection of rent by the Respondent S was done “In house” by standing orders; all of the functions were centralised. Therefore the Appellant lost some of his duties. The Appellant’s role “recycled over time” they tried to find other duties for him. For example they gave the Appellant one day a week in the Kilbarrack building. The witness explained that she sat with the HR person (LB) in December 2013 to make the Appellant’s role redundant. The witness explained that LB prepared a written document regarding the matter. This written document was opened to the Tribunal. The witness was asked if the Respondent S told her or instructed to make the Appellant / Appellant’s position redundant in order to comply with (TUPE) and she disagreed. The witness is satisfied that the Appellant’s redundancy was fair.
The Tribunal heard evidence from LB who is the senior HR business partner. Regarding her meeting with CN she agreed that CN wanted to ensure that the redundancy was correct. She was informed that the Appellant’s role had eroded, so she herself examined the role to satisfy herself that the role had evolved and eroded. She did look for an alternative role for the Appellant. She did not find any other role as the Appellant’s role was a unique stand-alone role. The Appellant did not hold an appropriate license for property management as other had. The Appellant was attending college to obtain a license but was a long way away from obtaining a license.
Determination:
The Tribunal having heard the evidence adduced determines that the first / second named Respondent made the appellant’s position redundant. The work that the office managers/ workers did was work that they had been doing; that is the Respondent did not create their work to the deliberate detriment of the Appellant’s position. The redundancy was a bone fide redundancy. Accordingly, the Tribunal dismisses the appeals and affirms the Rights Commissioners Decisions r-146869-tu-14lDI and r-146864-tu-14lDI.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)