ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003795

Complaint for Resolution:

Date of Adjudication Hearing: 23/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The complainant began work with the respondent on November 19^th 2011. On July 25^th the company went into receivership and while it did emerge from this process the business premises were considered unsafe and unfit for purpose and closed.

The employees were offered alternative employment in another premises on the same terms and conditions of employment and a payment for getting to and from work by public transport but this was not acceptable to the complainant.

She sought a date by which she would be returning to the closed premises which the respondent was not in a position to provide her with as the concluding date for the necessary refurbishment was difficult to predict.

Complainant’s Submission and Presentation:

The complainant outlines that she was very unhappy with the way she had been treated by her employer. The premises at the heart of the problem has now re-opened.

She said she was unclear about which legislation most appropriately covered her complaint.

Respondent’s Submission and Presentation:

No transfer of undertaking had taken place.

The arrangement proposed to the complainant was a temporary measure for the duration of the refurbishment work. The respondent regarded the complainant as a very good employee and was anxious to retain her in employment although she sought to be ‘laid off’. Indeed they would welcome her return to work.

The respondent did meet a number of her requests, for example by offering to give seven days prior notice of her roster but she declined to agree to the reassignment. She also sought a date for returning to the original premises but it was not possible to predict that with any certainty.

Conclusion and Findings

The complainant has a clear grievance about the manner in which the respondent handled the matter which gave rise to the complaint.

While it is not relevant to my decision I view the respondent’s attempts to accommodate the complainant as very reasonable, although ultimately it was a matter for the complainant to decide whether she wished to accept the terms on offer.

A greater obstacle to her complaint, however is that it has been made under the wrong legislation.

No transfer of undertakings took place so the relevant Regulation is not engaged. The company went into receivership, and for the duration was run by a management company, but emerged from that and was handed back to the original owner, and but for the unfortunate closure of the premises things would have continued as they were.

In her submission at the hearing she referred to unfair dismissal, and redundancy issues, and also entitlements to holiday pay as well as ‘any other breaches of my employment rights’.

For reasons that will be obvious, an Adjudicator can only decide a matter on the basis of the legislation under which the complaint is referred, and complainants would be well advised to ensure that they have selected the legislation most appropriate to their complaint at the time of submitting it. Complaints may arise, of course, under several statutes.

Therefore as no evidence was offered to ground a complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003 the complaint must fall

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.

For the reasons set out above I do not uphold complaint CA-00005615-001.

Dated:   08/03/2017