ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004005

Complaint(s)/Dispute(s) for Resolution:

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

Terms of Employment( Information) Act1994

Summary of Claimant’s Submission and Presentation

The claimant has been employed as a Compliance Officer with the respondent since the 1^st.March 2016 – he had commenced employment with the servicing company who had lost the contract to the respondent from the 27^th.Jan.2014.It was accepted by both parties that the Transfer of Undertakings Regulations applied to the takeover.

The claimant submitted the respondent was in breach of the Act for failing to furnish him with a statement in writing of his terms of employment.

Summary of Respondent’s Submission and Presentation:

It was submitted that the claimant’s terms and conditions were as submitted by the transferor and the respondent company had not changed those terms and conditions of employment.It was contended that the claimant already had his terms and conditions of employment in his possession and that therefore the respondent was not in a position to issue same.

Decision

Having reviewed the evidence presented at the hearing , I have concluded that in light of the fact that the claimant was furnished with the transferor’s terms and conditions of employment , there is no obligation on the transferee to issue him with the respondents terms and conditions of employment .Accordingly , I find against the claimant and do not uphold his complaint.

European Communities (Protection of Employees on Transfer of Undertakings) 2003 Regulations

Summary of Claimant’s Submissions and Presentations

The claimant submitted that when he commenced employment with the transferor , his rate of pay was €12.50 per hour and he was to be paid travel expenses for the use of his own car.He was advised at interview that he would be paid a rate of .59cent per km for the first 6400 and .2846 per km thereafter.His contract documents when furnished included a sheet setting out these rates.He accepted the positon as offered on this basis.For the full duration of his employment with the transferor , he was paid the agreed rate of travel.On the 29^th.Feb. 2016 , he received correspondence from the transferee advising that travel expenses would be paid at the rate of .42cent per km for the first 6,000 km and .21cent thereafter.The claimant set out the ensuing exchanges that took place with the representatives of the transferee on the matter.In the course of these exchanges the claimant’s line manager had assured the claimant that the higher rate paid by the transferor would be paid but this was subsequently contradicted by the transferee.The claimant appealed the case through the grievance procedure but was unsuccessful.

The claimant submitted that he was advised by the transferee on the 8^th.Feb.2016 as follows:

The transfer will not in any way affect his current terms and conditions of employment , benefits , excluding the company pension or your service , as the respondent will be taking full responsibility and recognising all these matters on the transfer…

The welcome pack received by the claimant set out the reduced rates which he submitted would have a significant and disproportionate impact on employees working in regional centres.

The claimant submitted that he was satisfied that the respondent company were aware of the mileage expenses pad by the transferor from due diligence.He advanced that no economic , technical or operational reason was advanced to justify the reduction in travel rates.He asserted that he was entitled to rely upon the protection of the Regulations to support his assertion that his mileage rate would be maintained by the transferee.The claimant asserted at the hearing that he took up the offer of appointment with the transferor on foot of the commitment to pay public sector travel rates – given the low rate of pay of €12.50 per hour.

Summary of Respondent’s Submissions and Presentations

It was submitted that at the time of the takeover by the respondent the Transfer of Undertakings Regulations applied.It was advanced that no information had been provided to the respondent regarding contractual terms in relation to the matter of expenses .It was submitted that the only reference to this was in the terms of employment which stated

“In line with Company policy , a mileage expense rate will be paid to cover travel costs to other locations from your base location”. It was submitted that the respondent understand that the transferor did have an expense rate of .59cent - .2846 cent per km.

It was submitted that when the claimant transferred he was advised that the respondent expense polcy was paid at a rate of .42 cent for the first 6,000km and .21 cent thereafter.

The respondent set out a chronology of the processing of the claimant’s grievance regarding the rate of expenses .

It was submitted that the Regulations are very clear on what transfers between one employer and another and these are the terms and conditions applicable on the date of transfer.It was submitted that expenses are not deemed to be wages under the Payment of Wages Act 1991 and that expenses are a policy matter for the company and are subject to annual review.It was advanced that expenses are not a term of the Conditions of Employment but are reimbursement for expenses incurred by the   employee and “ therefore the rate which those expenses can be paid is decided by the employer and not by the employee”.It was contended that there was no indication that there is any specific rate to which expenses are linked in the claimants terms and conditions of employment and that when the claimant pursued his grievance he was asked to provide supporting documentation to substantiate his claim and had failed to do so.It was submitted that expenses are of a discretionary nature and that the company had applied the company policy in relation to expenses.

Decision

I have reviewed the evidence presented at the hearing and noted in particular the provisions of the transferors contract which states “ In line with the Company policy, a mileage expense rate will be paid to cover travel costs to other locations from your base location “ and that accompanying this document was a catalogue setting out a rate of 59.07 cent up to 6,437km and 28.46 cent for 6,438km and over. Of further note is the letter to the claimant dated the 8^th.Feb.2016 from the respondent which states “ I am pleased to advise you that the transfer of this business will not in any way affect your current Terms and conditions of Employment , benefits , excluding the company pension , or your service as…the respondent …. will be taking full responsibility and recognising all these matters on the transfer”.Regulation 4 provides that the transferor ‘s rights and obligations arising from a contract of employment existing on the date of the transfer , shall by reason of such transfer , be transferred to the transferee.Consequently , I find the respondent has breached this provision of the Regulations and I uphold the complaint.I require the respondent to pay the claimant the difference between the higher rate and the reduced rate from the date of transfer and to pay the claimant €750 compensation for breaching the Regulations.Payment to be made to the claimant within 42 days of the date of this decision.

DATED     21/03/2017