ADJ-00007365

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007365

Parties:

	Complainant	Respondent
Parties	A Technician	An Environmental Services Company.

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-00009814-002	17/02/2017
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-00009814-001	17/02/2017

Date of Adjudication Hearing: 08/06/2017

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).

1: Summary of Complainant’s Case:

The Complainant was employed by Transferor - Respondent No 1 from September 2009 until the 18^th January 2017 on which date the Transfer of Undertakings to the Transferee - Respondent No 2 took place.

No information was provided to the employees impacted and the details of the transfer were only made known to them on the morning of the 18^th January 2017.

The provisions of S.I. 131 of 2003 Section 8 regarding Information and Consultation were completely breached in this case and compensation is due to the Complainant.

2: Summary of Respondent’s Case:

The Transfer took place on the 18^th January 2017 as set out by the Complainant. The Transfer Negotiation had been highly commercially sensitive and bound by a non disclosure agreement between the parties.

No material changes at all took place to the terms and conditions of employment of the employees and the Complainant remains an employee.

It is acknowledged that the “30 day rule” could not have applied in this case due to the highly sensitive nature of the discussions and the fear of commercial contracts being lost to competitors during a protracted consultation period.

The Consultation provisions are guidelines only and that, as there were no changes in the terms and conditions of the employees, the information was provided as soon as it was possible.

3: Findings and Conclusions:

Legal Authorities general take the view that the requirement to inform and consult employees, while an undoubted legal requirement, can be tempered by the circumstances of the situation. This would apply particularly where the employees concerned suffer no detriment as a result of the transfer –as in the case in hand.

stated as follows16-92

“ As noted above, there is provision that the vendor/purchaser shall “consult” with the employee representative “in good time” if there are measures envisaged in relation to the employees. Unfortunately, “in good time” is not defined and employees are usually advised at the last moment about the proposed transfer. This is not necessarily the employers’ fault, because during delicate negotiations it may be imprudent for persons other than those negotiating the deal to be aware of it” Like w 1st Ed. 2014 (includes supplement up to date to November 2015)

Likewise Donovan in Employment Law 2016 –Nutshells Thompson Reuters at page 52 stated

“There will be situations where it is not practicable, reasonably or other wise , to comply with art 8 because the transfer will only occur after the expiration of the 30 days or with no time , good or other wise, before the transfer is carried out. In these circumstances there is a technical breach and the adjudication body should simply direct that the regulation be complied with but make no award of compensation.”

In the case in hand there was no material detriment to any of the employees or to the Complainant.

Accordingly I have to find that there was a Technical Breach of Section 8 of S.I 313 of 2003.

The claim is well founded and I require this to be brought to the attention of all in management at the Respondent.

However having regard to Section 10(5) (c) of the S.I. I do not award any financial compensation in respect of the breach.

4: Decision:

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 S.I.

Act

Complaint/Dispute Reference No.

Summary Decision

Ref Section 3 above 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-00009814-002

Claim is well founded. However it is a technical breach and no compensation is awarded.

CA-00009814-001

Claim is well founded. However it is a technical breach and no compensation is awarded.

Dated: 30/8/17

Workplace Relations Commission Adjudication Officer: Michael McEntee

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