ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007367

 Parties:

Complaint

Date of Adjudication Hearing: 20/07/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

 The Complainant was employed by the Respondent, the Transferor, from 1^st March 2001 until his employed transferred under the TUPE Regulations to a named Employer on 18^th January 2017. The Complainant was paid €3500.00 gross per month and he worked 39 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 20^th February 2017 alleging the Transferor had breached the Regulations in relation to informing and consulting with the employees.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant stated that on 18^th January 2017 on the Employer’s premises, the Complainnat and 10 other employees were informed that they had a new Employer with immediate effect. The Complainant stated that the employees and the Complainant were not informed or consulted prior to the transfer.

SUMMARY OF RESPONDENT’S POSITION.

In October 2016 the Respondent began discussions with a named Company concerning the sale of their Pest Control Business. Discussions and negotiations were carried on with utmost secrecy and confidentiality to protect the interests of the parties, shareholders and creditors. Non-disclosure documents were signed by all the Parties involved in the discussions and negotiations. The Transfer was affected on 17^th January 2017 and on 18^th January 2017 the Respondent invited the affected employees, including the Complainant, to a meeting to discuss the transfer. An Information letter and anticipated questions were distributed at the meeting and the transfer was effective immediately.

The Respondent argued that Section 8(2) of the Regulations of 2003 provide that “The Transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably possible, not later than 30 days before the transfer is carried out and in any event, in good time before the transfer is carried out”. The Respondent argued that it was not reasonably possible to consult 30 days in advance as this was due to the confidential nature of the transfer. The Respondent was bound by non-disclosure agreements.

Nothing changed for the employees who transferred, including the Complainant and the Complainant did not suffer any detriment as a result of the transfer

FINDINGS AND CONCLUSIONS.

Regulation 8 (1) provides that “The Transferor and Transferee concerned in a transfer shall inform their respective employee’s representatives affected by the transfer of – (a) the date or proposed date of the transfer (b) the reason for the transfer (c) the legal obligations of the transfer…..(d) any measures envisaged in relation to the employees.” Regulation 8 (2) provides that “The Transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practible, not later than 30 days before the transfer is carried out and in any event, in good time before the transfer is carried out”.

The Respondent confirmed that they did not comply with either Regulation 8(1) or (2). The Respondent argued that they were bound by a confidentially clause between the Parties to the Transfer until it was agreed which happened on 17^th January 2017 and the Transfer was effective from 18^th January 2017. The employees were informed at a meeting with the Transferor on 18^th January 2017.

The Respondent argued at the Hearing that the interests of the parties to the transfer and the shareholders and creditors had to be protected. However there is an equal obligation on the Transferor under S.I. 131 of 2003 to comply with Regulation 8(1) and (2) in respect of the employees who are due to be affected by the transfer. I do note that each employee was provided with a letter in relation to the transfer and a two page document in relation to anticipated questions that may arise. However this was done after the transfer had been affected on 17^th January 2017. However I note from both Parties that the Complainant did not suffer any determent in relation to the transfer.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint. In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €300.00 within 42 days of the date of this Decision.

Dated:   10 November 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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