ADJ-00003791

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003791

Parties:

	Complainant	Respondent
Parties	A Public House Assistant Manager	A Public House

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-001	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-003	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-004	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-005	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-006	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-008	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00005071-010	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00005071-011	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00005071-012	30/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00005608-001	30/06/2016

Date of Adjudication Hearing: 17/07/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003); Section 27 of the Organisation of Working Time Act, 1997; Section 6 of the Payment of Wages Act, 1991 and Section 8 of the Unfair Dismissals Acts, 1977 - 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: Background:

The matters under consideration here ( Adj 3791) arise from the sale and TUPE transfer of a Dublin City centre licensed premises from a Receiver to the Respondent in this case. The Complainant was employed as an Assistant Manager in the licensed premises. The Complainant has also taken proceedings against the Receiver under Adj 3832. Both cases are closely linked.

Regrettably a key witness for the Respondent, the General Manager of the Licensed Premises, passed away in the period between the referral of the claims and the Oral Hearings.

In the Adjudication decision below Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) is abbreviated, for convenience , to the phrase “The TUPE” regulations.

2: Summary of Complainant’s Case:

As there are multiple complaints in this case I have taken the liberty, for convenience of all parties, of utilising a Tabular Format to set out a brief summary of the Complainants case. Detailed comments are attached in Section 2.2 following the table below. 2:1 Table of Complaints made
Act	Complaint/Dispute Reference No.	Summary of Complaint
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-001	The new employer (Transferee) did not ensure that my terms and conditions of employment transferred from my previous employer (Transferor) Section 4 of the TUPE regs
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-003	The new employer (Transferee) did not observe the terms and conditions transferred from my previous employer (Transferor) Section 4 of the TUPE regs
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-004	The Complainant was dismissed from his employment by the Transferee on the grounds of the transfer of the Business/undertaking. Section 5 of the TUPE regs
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-005	Employee representation was not preserved or arranged by the new employer the Transferee) Section 7 of the TUPE regs.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-006	The Complainant was not informed of the details of the transfer as required by the TUPE regulations. Section 8 of TUPE regs
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00005071-008	The Transferee did not consult in relation to the transfer of the business. Section 8 of TUPE
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00005071-010	This complaint was withdrawn as settled prior to the hearing.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00005071-011	The Complainant did not get his legal daily rest periods on specified dates. Organisation of Working Time Act,1998 Section 11
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00005071-012	The Complainant did not get work breaks on specified dates. Organisation of Working Time Act,1998 Section 12
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00005608-001	The Complainant was Constructively Dismissed due to the Conduct of the Respondent. Unfair Dismissals Act, 1977 Section 6

2:2 Detailed Arguments regarding points above. :

Section 4 of the TUPE regulations

Failure to transfer terms and conditions of employment.

The Respondent effectively changed the position and job title of the Complainant from Assistant Manager to Barman, reduced his responsibilities and changed the weekly hours of work of the Complainant. His start date with the Transferor (the old employer) was not recognised.

The Complainant’s duties as a key holder and manager of staff rosters etc. were taken over by the new owners. His long standing working hours arrangements and specifically the issue of Thursday’s off for family reasons were ignored.

A new Assistant Manager was announced without consultation with the Complainant.

Section 5/TUPE – Dismissal

The behaviour of the Respondent was such that the Complainant was left with no option but to resign. There were delays in payments of salary which were calculated to pressurise the Complainant to resign. Overall the demeanour of the Respondent and his cavalier lack of regard for the Complainant’s rights under TUPE made it impossible for the Complainant to continue working.

Section 7/TUPE – Employee Representation

The Respondent failed to engage with or seek employee representation during the TUPE process.

Section 8 TUPE Consultations

No meaningful Consultations took place during the TUPE process. The meetings alleged in October 2015 and again in February 2016 could not be described in any meaningful way as proper consultations.

The Respondents did not in any meaningful way engage with the Legal representatives of the Complainant once they came on record in March 2016.

Section 6 of the Unfair Dismissal Act, 1977

The behaviour of the Respondents, regarding his rights under TUPE was such as to make the Complainant’s position untenable and he “Constructively” resigned.

3: Summary of Respondent’s Case:

Following the broad outline above the Respondent’s case was largely as follows

Regarding Consultations and Information the Respondent initiated meetings with the Complainant and his colleagues in October 2015. There could have been no doubt that the Respondents were the potential purchasers and the reasons for the sale/Transfer were common knowledge. The business was in receivership and a new owner was to be expected. Delays in the finalisation of the sale/transfer resulted in the deal not being finalised until February 2016.

On the 26^th February 2016 the Complainant and his colleagues were informed that the transfer had taken place. The level of detailed information received from the Receiver was sparse and the Respondents took all possible steps to amend and alter any errors or omissions in the employment contracts as they were made aware of them.

A number of meetings took place between the new General Manager (Mr XA) and the Complainant to seek to resolve any outstanding issues. However the Complainant, almost from day one engaged Legal representation which made the situation difficult and made delays in reply inevitable. A key meeting took place on the 9^th March. The meeting was attended by the General Manager, Mr XA and the Accountant for the Respondent, Mr XB. The purpose being to iron out matters at a local level particularly as the Complainant had by this stage sent two lengthy Solicitors letters to the Respondent.

The Respondent stated that the Complainant maintained that he had enjoyed favourable cash in hand pay arrangement with the former owners. They refused to continue this (it being illegal) and this was a major factor underlying the Complainant ‘s dispute and eventual resignation.

As regards Rosters and Days off the Respondents were absolutely new to the business as carried out at that premises. Mr XA met with the Complainant to seek to iron out any difficulties here. The behaviour of the Complainant was not cooperative in the context of a new owner seeking to get a good feel for the business.

Payment delays in regard to wages were regretted but again had to be seen in the context of a new owner and the need to set up new Bank records and make arrangements to pay staff electronically.

In regard to the Organisation of Working Time complaints the Complainant was afforded all breaks and rest periods in keeping with the accepted practice of the Pub/Licensed Trade. There was no effort made to avoid or alter his legal rights.

In summary the Respondent maintained that the transfer had taken place on or about the 17^th February 2016. The new owners had formally introduced themselves to the staff on the 24^th February. The Complainant had resigned on the 11^th March 2016 – some 16 days later.

The Respondents had no desire to be without the services of the Complainant. His knowledge and experience in the running of the Bar was recognised. However his actions over the very brief period were completely unwarranted particularly in a period of transition / handover between a new and an old employer.

His resignation was largely due, in the opinion of the Respondent, to his having secured alternative employment and the refusal of the Respondent to continue with any “Cash in hand” arrangements.

His claim is without any realistic foundation.

4: Findings and Conclusions:

4:1 The Constructive Dismissal

As a Constructive Dismissal is central to this case the two standard tests of (1) Fundamental Breach of Contract and (2) Unreasonable Behaviours by the parties will have to be looked at as a guide line.

The time frame invoked was effectively from the 24th February to the 11th March 2016 –some 16 days.

The business had been subject to a TUPE transfer. Evidence presented indicated that the Receivers, the former owners, may not been as efficient as possible in the transfer of employee information .The new owners, the Respondents, were bereft of some of the required details and were effectively establishing themselves in the business. The takeover of a licensed premise from a Receiver is going to be fraught with difficulties and will necessitate a transition period for all concerned.

Unfortunately the key witness for the Respondent here, the new General Manager, passed away prior to the hearing. However having studied the extensive written evidence and heard from the Accountant, Mr. XB it appeared clear that the Respondents were always open to discussions with the Complainant regarding his issues.

The key meeting was on the 7th March 2016. The Complainant attended as did the General manager, Mr XA and the Accountant, Mr XB. Recollections varied considerably between the Complainant and the Accountant Mr. XB. However it appeared clear that the purpose of the meeting had been to sort things out locally particularly as the exchanges of legal correspondence between the Solicitors for both side had now developed considerably.

A further meeting between the Complainant and Mr. XA, the General Manager took place on the 9th March 2016 to consider the work roster issue. Unfortunately the General Manager is now deceased but it appeared that he was working to resolve the issues of the Complainant.

The Complainant resigned on the 11th March, some two days later.

4:2 Taking the two Constructive Dismissal test into account I came to the following conclusions

(a) Fundamental Breach of Contract:

Notwithstanding that the issue of a job title and certain responsibility changes arose in the very brief transition period (16 days) under consideration I could not see how there had been any fundamental long term breach of the Complainant’s contract. There might possibly be an argument here after the new Employer had settled in and six months later the Complainant’s situation remained as described. However the issue simply could not be considered in the very limited time period involved. In the period two significant multi page letters had been written by the Complainant’s Solicitors. The Respondent’s Solicitors had to seek Client instructions and putting considered replies on record was major challenge.

At the hearing it was clear that the Resignation letter may have been written before one of the Respondent’s legal replies had been received yet alone considered.

For the Complainant to arrive at the fundamental and most serious conclusion regarding a Fundamental Breach of Contract, sufficient to justify a resignation, in this very short time period I found hard to accept.

(b) Unreasonable Behaviour of the Parties.

Having considered all the evidence I could not find strong evidence of “Unreasonable Behaviour” of the degree required in a Constructive Dismissal case. Delays in payments while new banking arrangements are being set up are not evidence of Unreasonable Behaviour. Likewise the issue of the change in Job Title and mistaken employment start dates are not unexpected in the transition period following a TUPE transfer. Again as stated above the reading or characterising these actions as “Unreasonable Behaviour” after only some 16 days is premature in the extreme.

In conclusion I came to the view that the normal tests for Constructive Dismissal were not satisfied in the Complainant’s favour.

4:3 - The TUPE; Organisation of Working Time and Unfair Dismissal Act, 1977 complaints.

In overall commentary I came to the view that the TUPE process had not been handled very professionally either by the Respondent (the Transferee) or the Receiver (Transferor).

Accordingly a range of technical breaches were evident.

These are addressed in tabular Format below. (Following the Table below at 2:1

Act	Complaint/Dispute Reference No.	Summary Adjudication Decision
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The new employer (Transferee) did not ensure that my terms and conditions of employment transferred from my previous employer (Transferor) Section 4 of the TUPE regs	CA-00005071-001	The Transferee did not adequately insure that all proper terms and conditions were understood. A seamless transfer did not take place and too much ambiguity followed. The Complainant’s claim is well founded.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The new employer (Transferee) did not observe the terms and conditions transferred from my previous employer (Transferor) Section 4 of the TUPE regs	CA-00005071-003	The Transferee observed the Terms and Conditions as far as he understood them. Too much ambiguity was allowed to arise. Accordingly the Complainant’s claim is well founded.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003 The Complainant was dismissed from his employment by the Transferee on the grounds of the transfer of the Business/undertaking. Section 5 of the TUPE regs)	CA-00005071-004	For the reasons discussed above in Section 4:1 I did not find the complaint of Dismissal was warranted. Claim is Not well founded and is set aside.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) Employee representation was not preserved or arranged by the new employer the Transferee) Section 7 of the TUPE regs.	CA-00005071-005	A Technical Breach of the TUPE regulations here. The small number of staff and the lack of any formal structures contributed to this breach.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The Complainant was not informed of the details of the transfer as required by the TUPE regulations. Section 8 of TUPE regs	CA-00005071-006	Again the formal procedures of the Transferee left a bit to be desired. The Complainant was not formally consulted and his claim is again well founded.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) The Transferee did not consult in relation to the transfer of the business. Section 8 of TUPE	CA-00005071-008	Again the formal procedures of the Transferees were lacking. The claim is well founded albeit on a technical basis.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00005071-010	This complaint was withdrawn as settled prior to the hearing.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 The Complainant did not get his legal daily rest periods on specified dates. Organisation of Working Time Act,1998 Section X	CA-00005071-011	From the evidence both written and oral the Complaint was afforded his breaks in keeping with accepted practices in the Licensed Trade. His claim in not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 The Complainant did not get work breaks on specified dates. Organisation of Working Time Act,1998 Section X	CA-00005071-012	From the evidence both written and oral the Complainant was afforded his breaks in keeping with accepted practices in the Licensed Trade. His claim in not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00005608-001	As discussed in Section 4 1 of this Adjudication I did not find that a case for Unfair Dismissal had been satisfactorily established. The Claim is dismissed.

5: Formal Decision:

5:1 Section 41 of the Workplace Relations Act 2015 ; Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003); Section 27 of the Organisation of Working Time Act, 1997; Section 6 of the Payment of Wages Act, 1991 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.

I refer to the Table at Section 4: 3 of this Adjudication decision, above, for a listing of formal decisions per Complaint number.

5:2 Redress Awarded.

As the Unfair Dismissal Claim (CA-00005608-001 ) under the Unfair Dismissal Act 1977 is dismissed as is the parallel complaint under the TUPE regulations (CA-00005071-004) no Redress is warranted here.

Likewise the claims under the Organisation of Working Time Act, 1998 - CA-00005071-011, CA-00005071-012 were dismissed and no Redress is awarded.

It remains to be considered what Redress is appropriate for Breaches of the TUPE Regulations as identified in Section 4 above of this Adjudication.

Redress is considered by

Section 10, sub section 5 of the TUPE regulations as set out below


(5) A decision of a rights commissioner under paragraph (4) shall do one or more of the following:
(a) declare that the complaint is or, as the case may be, is not well founded;
(b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or
(c) require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -
(i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,
(ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,
in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977 ,

Again for convenience the identified breaches and ordered Redress under Section 10 of the TUPE regulations are set out below.

Complaint Ref No.	Section of the TUPE regs	Redress awarded under Section 10 (5) of the TUPE rigs.
CA-00005071-001	Section 4	A payment of €500 Euro be made in redress for the breach of a statutory right under Section 4
CA-00005071-003	Section 4	No additional redress awarded / addressed under CA 00005071-001
CA-00005071-005	Section 7	A payment of €250 Euro be made in redress for the breach of a statutory right.
CA-00005071-006	Section 8	A payment of €500 Euro be made in redress for the breach of a statutory right.
CA-00005071-008	Section 8	No additional redress awarded / addressed under CA 00005071-006

The Redress amounts are Gross figures and the applicability of any Taxation to these awards is a matter to be determined on the advice of the Revenue Commissioners.

Dated: 24/10/17

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words: