ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010161
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Officer | A Security Company |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012828-050 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012828-051 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012828-052 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012828-053 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012828-054 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012828-055 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012828-072 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012828-073 | 27/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012828-074 | 27/07/2017 |
Date of Adjudication Hearing: 06/11/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a Security Officer from 7th September 2012 to 20th April 2017, when his employment transferred to another security company under a transfer of undertakings. He was paid €516.00 per week. |
Preliminary Point – Jurisdiction, Wrong Respondent named.
Respondent’s position
The Respondent stated that this employment transferred to another security company (named) on 20th April 2017. As per the terms of the Transfer of Undertakings Regulations the rights and obligations transferred from the Transferor (Respondent) to the Transferee (new Named Company).
He stated that all liabilities transferred as well. He stated that this has been upheld by Adjudication Officers of the Workplace Relations Commission and the Labour Court. They cited the Labour Court case Gerard Reilly v Synergy Security Solutions UDD174 in support.
It is their position that there was a transfer of undertakings, that not just contractual obligations which transfer but liability for breach of statutory rights and obligations also transfer.
Therefore, these complaints should have been taken against the Transferee (new Company).
The Respondent is incorrectly named and so the Adjudication Officer should rule that they have no role to play in these claims.
Complainant’s Position:
He stated that he accepts that his employment transferred to the Transferee (new company) on 20th April 2017. He stated that these claims refer to the time when he was an employee of the Respondent and therefore they are responsible for the monies owing. He did not submit claims while he was in their employment as he had concerns for his employment. Also, he had suffered from ill health and depression at the time and he was not in a correct state of mind to deal with his complaints at that time. |
Decision on the Preliminary Point
I note the conflicting positions of both parties to this dispute.
I find that a transfer of undertakings took place on 20th April 2017. This transfer was covered by the Transfer of Undertakings Regulations.
As per Regulation 4 all rights and obligations transfer from the Transferor (old company) to the Transferee (new company). However, it should be noted that not just contractual obligations transfer, liability for breach of statutory rights and obligations also transfer.
I note that this has been upheld by the Labour Court and an example was the above quoted case UDD 174.
Therefore, I find that the liability for any alleged and/or potential breaches of the Payment of Wages Act transferred to the Transferee (new company) on 20th April 2017.
Therefore, I have decided that the Respondent is not liable in this instance.
I have decided that the wrong respondent company has been listed
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that this complaint is misconceived
Dated: 20 November 2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
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