ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006180
Parties:
| Complainant | Respondent |
Parties | A Car Park Operative | A Car Park Operator |
Representatives | Dorothy Donovan, B.L., instructed by McDonald Solicitors | Mareid McKenna, B.L., instructed by Arthur Cox Solicitors |
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-00008259-002 | 18/11/2016 |
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-00008259-003 | 18/11/2016 |
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-00008259-006 | 18/11/2016 |
Date of Adjudication Hearing: 25/07/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant was working for Company A (the respondent) since 2007 and was assigned to work in the car park at this particular location when that employer secured a contract to operate same. Company B subsequently became the owner of the car park and contracted Company A to continue to operate the car park. In October 2016 Company A was informed that their contract to run the car park was being terminated in a month’s time and that the operation of the car park was from then on the responsibility of Company B. Company A maintained that there was a Transfer of Undertaking and that the complainant’s contract should transfer accordingly. Company B stated that the legislation did not apply in these particular circumstances and that the complainant’s employment was the responsibility of Company A. The complainant was left without employment with effect from 14 November 2016. |
Summary of Complainant’s Case:
The complainant was informed by the respondent that there would be a Transfer of Undertakings on 14 November 2016. No effort was made to ensure his contract transferred. Nothing happened as regards the transfer and on 14 November 2016 his employment terminated. There wad no consultation with the complainant apart from being informed that there was a transfer. The respondent, despite written requests from the complainant’s solicitor, failed, refused or neglected to supply information. |
Summary of Respondent’s Case:
The respondent believed that there was a Transfer of Undertaking. The respondent informed the complainant’s union of the forthcoming transfer. When there was no further contact from that party the respondent informed the complainant of his entitlement to transfer. The respondent was not aware of any measures envisaged in relation to the complainant nor aware of any relevant economic or social implications for him. The respondent fulfilled their obligations under Regulation 8. The respondent wrote to the complainant’s solicitors in this regard. Any alleged failure with regard to the communication process is a matter for the transferee. |
Findings and Conclusions:
These complaints were heard in conjunction with the complaints contained in the following complaint forms all of which have the same common background: ADJ-00006176, ADJ-00006016, ADJ-00008007, ADJ-00006190, ADJ-00006189, ADJ-00006014 and ADJ-00008161. In ADJ-00006176 I dealt with the issues arising in this matter and decided that a transfer of undertakings within the meaning of the regulations contained in the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (S.I. No. 131 of 2003) did not occur. In summary I found that (a) it is accepted that no transfer of assets occurred, (b) no staff transferred and (c) the previous holder of the contract did not cease to fully exist nor was a business or part of a business belonging to it transferred. I am therefore satisfied that a Transfer of Undertakings within the meaning of Article 1(1) of the Transfer of Undertakings Regulations did not occur.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Based on my decision that the Transfer of Undertaking Regulations do not apply I have made the following decisions: Complaint No. CA-00008259-002: I find this complaint not well founded. Complaint No. CA-00008529-003: I find this complaint not well founded. Complaint No. CA-00008529-006: I find this complaint not well founded. |
Dated: 21st September 2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
|