ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006189
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-00008260-002 | 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-00008260-003 | 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-00008260-006 | 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 2008 and was assigned to work in the car park at this particular location in 2013 when his employer secured a contract to operate same. Company B subsequently became the owner of the car park but 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 with one month’s notice and that the operation of the car park from then on was 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 respondent informed the complainant that there was a Transfer of Undertaking to Company B. The respondent made no effort to ensure that the complainant’s contract transferred. The respondent failed to consult with the complainant other than to say that there was a Transfer of Undertakings. The respondent, despite requests from the complainant’s solicitor, refused or neglected to supply information. |
Summary of Respondent’s Case:
The respondent informed the complainant’s trade union of the forthcoming transfer but there was no follow-up from that party. The respondent informed the complainant directly of the transfer. Under Regulation 10 any alleged failure with regard to the communication process is a matter for the transferee. The respondent provided all the information required under Regulation 8 to the best of its ability and in a timely manner. The respondent opposed the envisaged measure of Company B regarding the refusal to employ the complainant. |
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-00006180, ADJ-00008007, ADJ-00006190, ADJ-00006014 and ADJ-00008161. The full background and findings to these claims under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. No. 131/2003, are set out in Adj-00006176. 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)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint No. CA-00008260-002: Based on my decision that the Transfer of Undertakings Regulations do not apply I find this complaint not to be well founded. Complaint No. CA-00008260-003: Based on my decision that the Transfer of Undertakings Regulations do not apply I find this complaint not to be well founded. Complaint No. CA-00008260-006: Based on my decision that the Transfer of Undertakings Regulations do not apply I find this complaint not to be well founded. |
Dated: 31st August 2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly