FULL RECOMMENDATION
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES : ALLPRO SERVICES T/A ALLPRO SECURITY SERVICES IRELAND LIMITED - AND - HENRIETTA PITRIK (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision.
BACKGROUND:
2. The Employee and the Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 11(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulation, 2003. A Labour Court hearing took place on the 14th March 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal brought on behalf of Allpro Security Services Ireland Limited T/A Allpro (“the Respondent”) against a decision of an Adjudication Officer (ADJ-00000831) dated 1 June 2016. The Notice of Appeal was received by the Court on 12 July 2016. The Complainant (Ms Henrietta Pitrik) cross-appealed by Notice dated 25 July 2016.
Ms Henrietta Pitrik (“the Complainant”) commenced employment with the Respondent on 9 January 2015 as a part-time cleaner at Waterford Institute of Technology (“WIT”). The Complainant worked an average of 23.8 hours per week and was paid the then national minimum wage rate of €8.65 per hour. The Respondent subsequently lost the cleaning contract at WIT to a competitor, Ashbrook Facility Management ,following a competitive tendering process that concluded in May 2015. The Adjudication Officer found that the change of contractor in this instance gave rise to a transfer of undertaking within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Regulations”) and he found that the Respondent had failed to fully discharge its information and consultation obligations to the Complainant under Regulation 8 of the Regulations. The Adjudication Officer awarded compensation of €500.00 to the Complainant as against the Respondent (Transferor). The Respondent is not disputing that a transfer of undertaking occurred but is appealing against the quantum of the award for its alleged breach of Regulation 4.
Discussion and Decision
The Respondent notified the Complainant by letter dated 29 May 2015 that it had lost the cleaning contract at WIT and that, as a consequence, her employment would transfer on 30 June 2015 to “an as yet unnamed company in accordance with the [Regulations]”. The letter also confirmed to the Complainant that that her terms and conditions of employment would be safeguarded and guaranteed that her “continuity of employment for statutory and contractual purposes [would be] preserved.” However, she was also advised in the letter that “after the transfer the new company will give you an amended contract.”
Regulation 8 provides:
- (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of—
(a) the date or proposed date of the transfer;
(b) the reasons for the transfer;
(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them,
and
(d) any measures envisaged in relation to the employees.
(1A) The transferor and transferee concerned shall include, with the information being provided under paragraph (1), information as respects—
(a) the number of agency workers temporarily engaged in the undertaking concerned,
(b) those parts of the undertaking in which those agency workers are, for the time being, working, and
(c) the type of work that those agency workers are engaged to do.
(2) The transferor shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.
(3) The transferee shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.
(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.
(5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.
(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:
(a) the date or proposed date of the transfer;
(b) the reasons for the transfer;
(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;
and
(d) any measures envisaged in relation to the employees.
(7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.
The Adjudication Officer awarded compensation of €500.00 in compensation for the aforementioned breaches of Regulation 8. This is the equivalent of 2.4 weeks’ gross wages for the Complainant. The maximum amount of compensation which can be awarded for a breach of Regulation 8 is capped at 4 weeks’ pay. Having regard to the Respondent’s very minimal effort to comply with its obligations to the Complainant under Regulation 8, the Court directs that it pay the equivalent of 4 weeks’ remuneration in compensation (i.e. €823.48) to the Complainant. This is compensation for a breach of an entitlement and is, therefore, exempt from income tax.
The decision of the Adjudication Officer is varied accordingly.
Signed on behalf of the Labour Court
Alan Haugh
19th May 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.