ADJ-00004417

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004417

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

Date of Adjudication Hearing: 17/10/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Regulations, 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).

Complainant’s Submission and Presentation:

The complainant submits that the respondent failed to acknowledge its responsibilities under TUPE and as a result dismissed her unfairly. She was informed by the transferor on the 15^th of January 2016 that as a result of a review of its business it had decided that it would wind the business down over a six week period and that her position would be made redundant with effect from Friday the 26^th of February 2016. This was the sole communication in the matter. The business transferred to the respondent who is clearly the transferee under the regulations and it has therefore breached Regulations 4, 5 and 8. The complainant seeks maximum compensation under Regulation 10 in circumstances where the respondent was put on notice of the prospective breach prior to the transfer.

Respondent’s Submission and Presentation:

The respondent submits that it is a private limited company engaged in the provision of property management and letting services founded in 2008. It understands that the complainant was employed as an office administrator by her former employer and that she held what is termed a “D licence” allowing for the provision of estate management functions but critically not those concerned with residential property lettings. In tandem with a second complainant she owns and runs a property management and lettings company, founded in 2010 of which she is a director.     The complainant’s former employer provided property management and letting services in respect of a 275 unit student residential complex, set up and qualifying in 2002 for Section 50 Rental Income Tax Shelter Relief. The functions (common areas and management of the complex) were outsourced by the complex management company (Owner Manager Company – “OMC”) in whom the common areas and management functions were vested by the original developers. The OMC was incorporated in 2001 in tandem with the construction of the complex and the complainant’s former employer was incorporated in 2002 to provide property management and letting services exclusively to the OMC. Both entities have the same directors. When the complainant’s former employer decided to cease trading the OMC was obliged to tender for a new contractor to provide management and letting services in its behalf. The respondent tendered for the work as did the complainant and her colleague through their company (they had an employee with a “C” licence) which provided them with an opportunity to tender. The former employer ceased trading on the 28^th of February to facilitate an orderly handover. It is understood that all employees of the former employer were paid and accepted statutory redundancy pay.                                                                           The tender stipulated that the prospective contractor would be required to provide service from its own premises. The former employer operated from an office (Rent free) within the complex provided by the OMC. It did not own or lease the office or indeed any of the office equipment used by the complainant or her colleagues. In consequence no assets whatsoever transferred. In the handover period various employees of the respondent attended on site to inspect the physical files and computers and they extracted such information as was necessary and thereby set up their own files (both hard and soft copy). The respondent did not acquire the software/IT systems of the former employer. It uses its own proprietary system. There was no transfer of goodwill involved and the respondent has traded under its’ own name at all times. No employees transferred nor did the complainant seek to do so. The nature of the management and lettings service provided has completely changed. The original service was a “concierge” type service operated from an on-site/drop in facility whereas now it is remote and off-site. The respondent employs a caretaker on site who can source emergency services when required and necessary. Night security is provided though a camera monitoring system. “The economic activity undertaken by the respondent does not look, feel or operate akin to that heretofore undertaken” by the complainant’s former employer.       It is submitted that there was no transfer of assets or employees in this case and that therefore the facts can’t fit the test as provided in Suzen. Nor did the economic entity retain its identity. s. 15 of the Unfair Dismissals (Amendment) Act, 1993, amending paragraph 7 of the First Schedule of the Minimum Notice and Terms of Employment Act, 1973 provides that the transfer of a business does not break continuity of service for the purpose of those Acts unless the employee received and retained a redundancy payment from the transferor at the time of the transfer and by reason of the transfer.

Decision:

I note that there are six complaints referenced above and that each one is identical. The decision is equally applicable. I accept the submission of the respondent in respect of the application of the Suzen test and am therefore satisfied that no transfer of an undertaking within the meaning of the 2003 Regulations has occurred in this case.                                                                                                    Accordingly I find that the complaint is not well founded.

Dated:   16^th March 2017