FULL RECOMMENDATION
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES : GLEANN NA RI PROPERTY (GALWAY) LTD - AND - DAVID LAVIN (REPRESENTED BY PURDY FITZGERALD SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No(S): ADJ-00003652 Complaint/Dispute Reference No: CA-00003710-001, ADJ-00004233 Complaint/Dispute Reference No(s): CA-00004844-002, CA-00004844-004, CA-00004844-008, CA-00004844-010, CA-00004846-001, CA-00004846-002, CA-00004846-003, CA-00004846-004, CA-00004846-005, CA-00004846-006, CA-00004846-007, CA-00004846-008, CA-00004846-009, CA-00004846-010.
BACKGROUND:
2. The Worker appealed the Decisions of the Adjudication Officer to the Labour Court on 29 March 2017. A Labour Court hearing took place on 20 September 2017. The following is the Decision of the Court:
DETERMINATION:
This is an appeal by Mr David Lavin against the Decision of an Adjudication Officer ADJ-00003652 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Regulations”). In this Determination the parties are referred to as they were at first instance, hence Mr Lavin is referred to as ‘the Complainant’. The company, Gleann Na Rí Property (Galway), is referred to as ‘the Respondent’.
The Adjudication Officer found that the complaint was not well founded and the complaint under the Regulations accordingly failed.
The Complainant appealed the Adjudication Officer Decision to this Court on 29thMarch 2017. The appeal came before the Court on 20thSeptember 2017.
The Respondent did not attend the hearing before the Court, an observer was present in the Court on behalf of the Respondent. He did not participate in the proceedings.
Background to the Appeal
The Complainant in this case was employed in April 2004 by the Respondent, a company engaged in letting and property management service and was employed as a Night Security Operative, along with three other staff in administrative/management positions.
It is not disputed that up until the beginning of February 2016, the Respondent provided lettings and property management services at the Gleann Na Rí Student Residential Complex in Galway on behalf of a company called Murrough Management Ltd, which is an Owner Manager Company responsible for the common areas and management of the Complex. The Respondent provided these services from the time the Complex was constructed in and around 2002.
At a meeting on 15thJanuary 2016, the Complainant was informed that the Respondent’s Directors had decided to cease operations and wind down the company, with the result that his position with the company would become redundant as of Friday 26thFebruary 2016. The Complainant received a letter confirming this position on the day, also dated 15thJanuary 2016. The Respondent was subsequently unable to meet its statutory redundancy obligations and the Complainant ultimately received his redundancy payment from the Social Insurance Fund of the then Department of Social Protection.
Following the decision to cease trading, Murrough Management Ltd conducted a tender process to appoint a new service provider. A company called Overpass Limited t/a Ocean Property Management (hereinafter, Ocean Property Management) was ultimately successful in this process and the contract was awarded to it with a commencement date of 1stFebruary 2016.
The Complainant alleges that a transfer of an undertaking from the Respondent to Ocean Property Management, within the meaning of Regulation 3 of the Regulations, took place on Friday 26thFebruary 2016 . Therefore, he alleged that the Respondent failed to comply with its obligations under the Regulations leading to an unfair dismissal. The Complainant further alleges that the termination of his employment by reason of redundancy was in breach of his right to transfer to the Ocean Property Management under the Regulations, specifically his rights under Regulation 4(1):-
- 4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.
The Complainant seeks compensation under Regulation 10(5) for the unfair termination of his employment.
Conclusions of the Court
In support of his submission that a transfer of undertakings did occur in February 2016, Solicitor for the Complainant, Mr. Einde O’Donnell of Purdy Fitzgerald Solicitors, presented a full submission to the Court. This was comprehensively outlined in Labour Court Determination No. TUD179 dealing with a case taken against Overpass Limited t/a Ocean Property Management. As the Respondent was not present before the hearing, the Court received no submission outlining its position.
Labour Court Determination No. TUD179 found that having analysed the case law and having regard to the submissions made in that case, the Court held that a transfer of undertaking within the meaning of the Regulations did not occur in February 2016 when the Respondent ceased to operate the contract and the contract was subsequently won by the Ocean Property Management following a tender process.
Therefore the Court finds that the Respondent was not in breach of the Regulations. Consequently, the Court finds the Complainant’s claim that he was unfairly dismissed is not well-founded.
The Adjudication Officer’s decision is upheld accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
5 October 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.