ADJ-00008161

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

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010593-001

29/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00010593-002

29/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010593-003

29/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00010593-004

29/03/2017

The complainant was working for Company A since 2008 and was assigned to work in the car park in 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 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 would be 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.

The complainant was dismissed and this dismissal was an unfair dismissal within the meaning of the Unfair Dismissal Acts, 1977 – 2007, pursuant to Regulation 5(4) of S.I. 131/2003 which governs Transfers of Undertakings.

If there was a Transfer of Undertaking to the respondent hen they are responsible 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 Acts, 1967 – 2007.

The complainant received no notice nor payment in lieu of notice.

The complainant was due 5 days holidays or pay in lieu of same at the time his employment terminated.

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, business or part of a business).

In circumstances where there was no transfer of an asset an essential pre-condition of TUPE has not been satisfied.

The respondent therefore was not the employer of the complainant and these claims must fail.

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-00006189 and ADJ-00006014.

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 am therefore satisfied that a Transfer of Undertakings with the meaning of Article 1(1) of the Transfer of Undertaking Regulations did not occur.

Consequently I find that the respondent was not the employer of the complainant at the time of the termination of his employment.

Complaint No. CA-00010593-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. Based on my decision that the complainant was not employed by the respondent at the time of the termination of his employment I find that this complaint fails.

Complaint No. CA-00010593-002:

This is a complaint under the Redundancy Payments Act, 1967 – 2012. Based on my decision that the complainant was not employed by the respondent at the time of the termination of his employment I find that this complaint fails.

Complaint No. CA-00010593-003:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. Based on my decision that the complainant was not employed by the respondent at the time of the termination of his employment I find that this complaint fails.

Complaint No. CA-00010593-004:

This is a complaint under the Organisation of Working Time Act, 1997. Based on my decision that the complainant was not employed by the respondent at the time of the termination of his employment I find that this complaint to be not well founded.