ADJ-00003832

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003832

Parties:

	Complainant	Respondent
Parties	A Bar Assistant Manager	A firm of Receivers.

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-00005071-002	08/06/2016
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-00005071-007	08/06/2016
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-00005071-009	08/06/2016

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 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) 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).

For ease of reference the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) will be referred to in this adjudication as the TUPE regulations.

Background:

The complaint refers to the TUPE Transfer of a Dublin City centre licensed premises from a Receiver to a new Owner. The case is closely linked to Adj 3791 concerning the same transfer. The Respondent in this case is the Receiver –the “Transferor”.

1: Summary of Complainant’s Case:

1:1 Complaint No 1
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-00005071-002	The Transferor did not ensure that my terms and conditions transferred to the Transferee.
1:2 Complaint No 2
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-00005071-007	The Transferor failed to inform Employee Representatives of certain details of the Transfer.
1:3 Complaint No 3

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-00005071-009

The Transferor did not consult with the Complainant regarding measures envisaged in relation to the Complainant’s employment post the transfer.

2: Summary of Respondent’s Case:

2:1 Complaint No 1

Act	Complaint/Dispute Reference No.	Summary of Respondent Responses.
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-00005071-002	Full employment details were provided to the Accountants acting for the Transferee. Documentary evidence was submitted in support.
2:2 Complaint No 2
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-00005071-007	Receiver’s staff were in regular /weekly attendance at the premises and all staff were kept fully informed of the progress of the sale of the business. The Transferee was also in regular contact holding at least two meetings with staff including the Complainant.
2:3 Complaint No 3

CA-00005071-009

The Receiver’s staff were in regular contact with the staff, including the Complainant. He attended a meeting with his new employer on the 30^th September 2015 where full details were communicated.

3: Findings and Conclusions:

3:1 Complaint No 1 CA-00005071-002 Failure to Transfer Terms and Conditions. Section 4 of TUPE regulations.

The Manager from the Receiver gave evidence to the hearing and an exchange of e –mails between the parties was given in evidence.

It was clear that there was a problem with the level of details available to the Receiver’s staff which put them in a difficult position to answer the Transferee’s queries. However it appears that an honest effort had been made.

However on balance I came to the view that a minor Technical Breach of the TUPE regulations had taken place here.

3:2 Complaint No 2 CA-00005071-007 Failure to Consult.

The evidence from the Receiver and the Transferee was that regular contact was maintained with eh staff and verbal briefings were given. Admittedly no formal documents were provided by the Transferor to the Staff. Section 8 (6) of the TUPE regulations applies.

A Technical breach of the Regulations applies here.

3:3 Complaint No 3 CA-00005071-009 Consultations regarding Conditions of Employment post Transfer of Undertakings.

The evidence fro the Receiver was that the new owner the transferee had held meetings with the Complainant specifically one on the 30^th September 2015. The Receiver did not attend as he felt that this was primarily the business of the new Owner. In addition the receiver was aware of further contacts between the Transferee and the Complainant.

On balance and having reviewed the evidence presented I came to the view that the Complainant did not live in a “bubble” and was well aware of what was going on. However the communications were not documented and lacked proper formality as required by Section 8 of the TUPE regulations.

A Technical breach of the TUPE regulations took place.

4: Decision and Redress.

Section 41 of the Workplace Relations Act 2015 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Act and Statutory Instrument.

I was also conscious that Adj 3791 had already dealt with many of the matters closely allied to this case. I was also cognisant that the Complainant had suffered little material loss or damage in this case Adj 3832.

For ease of reference I will use a Tabular format.

Act	Complaint/Dispute Reference No.	Formal Decision and Redress awarded. Refer to Section 3 of this adjudication for detailed arguments.
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-00005071-002	Claim well founded albeit on largely Technical grounds. Redress of €100 Euro awarded.
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-00005071-007	Claim well founded albeit on largely Technical grounds. Redress of €100 Euro awarded
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-00005071-009	Claim well founded albeit on largely Technical grounds. Redress of €100 Euro awarded

Dated: 24/10/17

Workplace Relations Commission Adjudication Officer: Michael McEntee

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