ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006190
Parties:
| Complainant | Respondent |
Parties | A Car Park Operative | A Car Park Operator |
Representatives | Dorothy Donovan, B.L., instructed by McDonald Solicitors | Elizabeth Ryan, Mason Hayes & Curran |
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-00008260-001 | 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-00008260-004 | 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-00008260-005 | 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 since March 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 (the respondent) subsequently became the owner of the car park but contracted Company A to continue to run the car park. In November 2016 Company A was informed that their contract to run the car park was being terminated and that the operation pf the car park was from then on the responsibility of Company B. Company A maintained that thee 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 dismissed and this dismissal was an unfair dismissal within the meaning of the Unfair Dismissals Acts, 1977 – 2007, pursuant to Regulation 5(4) of S.I. 131/2003 which governs Transfers of Undertakings (TUPE). If there was a Transfer of Undertakings to the respondent then they are responsible under the Regulations for that dismissal. A dismissal under such circumstances is only permitted if the respondent can demonstrate that the termination was due to “economical, technical or organisational reasons which entail changes in the workforce”. In that case the complainant would qualify for a redundancy payment under the Redundancy Payments Act, 1967 – 2007. |
Summary of Respondent’s Case:
The TUPE Regulations do not apply to the termination of a commercial contract for a service such as that between the respondent and Company A in circumstances where at no point were Company A in possession of an asset (undertaking or part of a business). In circumstances where there is no transfer of an asset an essential pre-condition of the TUPE Regulations has not been satisfied. The Regulations do not apply to the termination of a commercial contract between Company A and the respondent. The complainant’s claims must therefore fail. |
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-00006189, ADJ-00006014 and ADJ-00008161. The full background and findings in relation to the 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 therefore am 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.
Complaint no CA-00008260-001: 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-00008260-004: 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-00008260-005: 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