ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005015

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

Date of Adjudication Hearing: 27/10/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) 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).

1:        Complainant’s Submission and Presentation:

2:        Summary Respondent’s Submission and Presentation:

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) applies in this case. There has been valid TUPE transfer and all liabilities now apply to Cleaning Company No 2. The Respondent applied all the regulations carefully and in keeping with good practice – the Complainant transferred to Cleaning Company No 2 on the 30^th June 2015.

3:        Decision:

Section 41(4) of the Workplace Relations Act 2015 and or the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) 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.

4:        Issues for Decision:

Did a Transfer of Undertakings take place between Cleaning Co No 1 (The Respondent) and Cleaning Co.? No 2?

If not then what redress is due to the Complainant from Cleaning No 1 - the Respondent?

5:        Legislation involved and requirements of legislation:

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) – the TUPE Regulations

6:        Decision:

6:1 I have carefully considered the oral evidence presented at the hearing and the written /legal submissions of the parties.

The issue of the application of the TUPE Regulations in transfer of Cleaning situations in Ireland has been well developed

The direct evidence was that the main asset in the School site A cleaning contract was the workforce; that there were no tangible assets of any significant value and that there was in any event no transfer of any assets. 

6: 2:     In the landmark ECJ case Suzen v Zthenacker Gebaudereingigung GmbH Krankenhausservuce (Case C-13/95) the ECJ (European Court of Justice) held that the “Transfer of Undertakings “ Directive

“does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their numbers and skills, assigned by his predecessor to the performance of the contract.”  

Effectively there was no Transfer of Undertaking

Later the judgment referred to

“the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract”   

In the case in hand, as already noted, there was no transfer of assets. 

This holding by the ECJ in Suzen, the case quoted above, has been consistently applied by the EAT in Ireland.  

A Cleaning situation, very similar to the case in hand, the cleaning of one Garda Station, was also well considered in Cannon v Noonan Cleaning Company Ltd [1998] ELR 153 /UD 200/97

In the Cannon v Noonan case (above) the EAT relied heavily on the Suzen case, referred to above and found that no Transfer had taken place. Redundancy was awarded to the Complainant against the first Company.

In UD 874/2013 -Maybin v Appellants, an appeal against a Rights Commissioner decision, - the EAT also quoted from the ECJ Sanchex Hidago case (C173/96 of the 10^th Dece3mber 1998) in a Cleaning case.

“The mere fact that the service successively provided by the old and new undertaking to which the service is contracted out or the contract is awarded is similar does not justify the conclusion that a transfer of such an entity has occurred”

Here (UD 874/2013) the EAT found that Compensation was due to the employees concerned.

Accordingly in keeping with the facts given in evidence and the legal precedents I find that in the case in hand there was no Transfer of Undertakings.

7:        Redress/Compensation

The Claim before the hearing was simply under the Transfer of Undertakings Regulations /European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). There was no Unfair Dismissal Act or Redundancy Act claims and in any event these would have been complicated by disputed evidence regarding the start date of the Complainant.

In regard to any issues under Section 8 –Informational and Consultation of the TUPE Regulations I accepted the Respondent’s bona fides regarding the late notice to his Company by the main contract owner –the School in question. I make no award under this section.

Under the Provisions of Section 10 of the TUPE Regulations I award the Complainant the Compensation sum of € 1,150 (being the equivalent of 6 weeks Gross Pay plus 1 week plus 1 additional week)

Dated:   2^nd March 2017