ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00006168
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00008350-001 | 21/11/2016 |
Date of Adjudication Hearing: 27/02/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 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).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | An Electrician | A Maintenance Services Company |
Complainant’s Submission and Presentation:
The Complainant was employed by the Respondent for 11 years as an Electrician. The Complainant was employed directly by the Respondent but was based at a Third Party location for all that time where he provided the Electrical service on behalf of his employer. ln April 2016 the Respondent verbally advised the Complainant that the Respondents bid for the electrical contract with the Third Party was not successful and the tender was awarded to another company. The Complainant alleged that there was no confirmation of this in writing from the Respondent and in passing the Complainant was told there may be an opportunity for the Complainant to work with the new company when they take over. The Complainant heard nothing more and then on 3rd May he was advised that a meeting had been set up for Wednesday 4th May for the Complainant to attend with the Facilities Manager of the new Electrical service on behalf of his employer. During this 15 minute meeting the Complainant was advised that he would receive an application form from the new company ( hereinafter called Company X) for completion and once he returned the application form he would then be furnished with a new contract. The Complainant stated he did not receive notification in writing from either his employer or the new contract company. When the Complainant questioned with his employer and the Third Party why he hadn't received any notification in writing from anybody regarding the upcoming changes and how he would be effected and what date the changes would be effective from, a meeting was then arranged for the Complainant, the Third Party and the Respondent on 1Oth May. The Complainant was assisted at this meeting by his Partner. The Complainant asked why, a month after the tender outcome had been revealed he still hadn't received any written notification of any possible changes to his employment. The Complainant said his employer said that the result of the tender meant that he would become an employee of the new company. The Complainant asked if that meant this was a transfer of undertakings situation under which TUPE applied and the Third Party representative then advised that TUPE may apply to his situation but it was not part of the tender that it definitely was. The Complainant advised that he had received an application form from Company X and the contents of that form was for somebody who was applying for a position within their company as opposed to somebody who would be transferring over under TUPE regulation. The Complainant told them that Company X had not sent on a contract of employment to the Complainant and they would not do so until he completed the application form and returned it to them, which he had reservations about doing. The Third Party told the Complainant to just complete the parts of the form that the Complainant wanted to and return to them as it was just part to have any further work for the Complainant then he would have to make the Complainant redundant. The Respondent refuted this to the Complainant and said that there wouldn't be any redundancy. The Complainant advised that he needed written notification of what was happening with his position and clarification on some points that were still unclear. The Complainant followed this up with an email to his employer with bullet pointed questions for answering and a request for the Respondent to comply with his requirements as his employer should this be a TUPE situation. A letter was sent by the Respondent to the Complainant on 12th May advising that they were unsuccessful in their bid for the Electrical contract at the Third Party and as a result the position of Electrical Maintenance would transfer over to Company X as of 13th June 2016. The Facilities Manager from Company X was onsite at the Third Party on 13th May and told the Complainant he would need his decision as to whether he would be moving over to Company X. The Complainant was also concerned that the company location of Company X was in a different county to the Respondent and that he could be asked to work in this new county, which he did not feel was part of his prior terms of employment. |
Respondent’s Submission and Presentation:
The Complainant was informed verbally and in writing (on three occasions) by the Respondent that TUPE would apply to this transfer and there was no redundancy.
The Complainant was also informed by Company X that TUPE would apply to his transfer.
The Complainants query about the address location of the company was irrelevant to the redundancy claim and was just a minor point in the transfer letter form the Third Party. There was no doubt the Complainant would remaining working in his current location after he transferred to Company X. If there was a concern then it should have been raised with the Respondent or Company X as a grievance which never happened.
No expectation was given by the Respondent to the Complainant that a redundancy would apply to his situation.
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to this complaint.
The Complainants position in this case is that he never received a redundancy payment from the Respondent. In this scenario a redundancy has to exist which would entitle the Complainant to a redundancy payment. The parties set out their respective positions at the Hearing and the key facts are as follows;
The work that was being performed by the Complainant at the Third Party on behalf of the Respondent was lost by the Respondent in a tendering process. The work was transferring to the new company, Company X.
On May 9th 2016 the Complainant emailed Company X with a number of questions regarding the transfer. Company X responded on May 12th as follows “Letter has been sent to you which answers your questions. Company X are also sending you a letter stating that they are transferring you to Company X with the same terms and conditions as you have at present with (The Respondent) as per TUPE requirements”.
On May 10th the Respondent wrote to the Complainant stating ”As and from 13th June our client(Client named) will be transferring the electrical service to Company X. The TUPE terms and conditions will apply to this transfer… It is agreed that the terms and conditions of TUPE will apply to yourself as the incumbent on the contract. This letter is notification of the pending transfer“.
On May 25th the Respondent wrote to the Complainants solicitor stating” In the case of the Complainant and his transfer to the incoming contractor I would state that he is being afforded the conditions as specified by the TUPE Regulations”.
On June 9th 2016 Company X provided the Complainant with a contract of employment which contained clause titled “Continuity of Service” and stated as follows” With reference to TUPE regulations the company recognises TUPE occurred from the previous employer and accordingly recognizes and accepts the continuity of employment with a commencement date 7th June 2005. “.
The Complainant resigned his position on June 10th 2016.
There is ample evidence from the above correspondence, from both the Respondent and Company X ( the Complainants new employer) that both TUPE was applying to the transfer of the Complainants contract of employment and that continuity of service and the same terms and conditions were applying to the Complainant on transfer to Company X. The issue of a new work address in a different county for the Head Office of Company X is not either material to the claim or a justification for redundancy as the Complainant had been informed that he was transferring to Company X “ with the same terms and conditions as you have at present with (The Respondent) as per TUPE requirements”.
The Complainant was given every possible assurance, by both companies, that can be given that TUPE was applying and he therefore choose, for whatever reason, to terminate his own employment by not transferring to Company X and as no redundancy situation existed his claim for a redundancy payment is not well founded.
Dated: 03 May 2017