Complainant

Respondent

Anonymised Parties

A chef

A facilities management company

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-00012955-003

03/08/2017

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-00012955-005

03/08/2017

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-00012955-006

03/08/2017

The complainant started working with the respondent (the Transferor) on October 24th 2016 as an assistant chef. He was issued with a permanent contract and he was to be on probation for six months until April 24th 2017. Under the heading of “Probationary Period,” his contract stated as follows:

“During the course of your probationary period, your supervisor / manager will have regular appraisal interviews with you to ensure, as far as possible, that a satisfactory rate of progress is being maintained. If your progress does not reach an acceptable standard, your employment with the company may be terminated at any time during the probationary period.   Depending on your performance, the probationary period may be extended by (name of the Transferor). If, at the end of your period of probation, your progress is satisfactory, you will be appointed to the permanent staff.”

Shortly after the complainant started work, the directors of the nursing home decided to contract out the work of the catering, laundry and cleaning staff. A facilities company was selected and on February 6th 2017, 16 people, including the complainant, became employees of a facilities company (the Transferee), in accordance with the Transfer Regulations.

The complainant’s employment was terminated by the Transferee on July 17th 2017, due to problems with his performance. Before he was dismissed, he earned €553.15 per week.

Below is a summary of the complaints as they are set out on the complaint form.

Reference number

Outline of Complaint

CA-0012971-003

A consultation meeting was held on January 6th 2017 by my former employer, however it was lacking in specific data required under the 2003 regulations and left us wholly unprepared for the transfer.

CA-0012971-005

There was no attempt by my former employer to ensure that my terms and conditions transferred, which led to the situation where my new employer sought to change my terms and conditions and I was subsequently dismissed.

CA-0012971-006

As a result of the failure to properly consult and / or select representatives, essential details were not conveyed properly to me by my former employer.

On January 6th 2017, along with the other employees in the catering, laundry and cleaning departments of the nursing home, the complainant attended a meeting at which he was informed of the decision of the directors to contract out the non-clinical work. The complainant said that at the meeting, the staff expressed concern about their jobs.   He said that they were all informed that their jobs were safe and that their terms and conditions would not change.   In evidence, the complainant said that the critical change that happened as a result of the transfer was that he was dismissed.

For the respondent, the nursing home manager said that she recruited the complainant in October 2016 to fill a permanent vacancy as an assistant chef.

Late in 2016, the directors selected the Transferee’s company as the out-sourced provider of catering, cleaning and laundry services and the staff were called to a meeting on January 6th. The complainant attended this meeting. Following the meeting, the affected employees were issued with a letter confirming the name of the Transferee, the reasons for the transfer, the date of the transfer and confirmation that there would be no changes to terms and conditions of employment.

The Legal Framework

The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.”   Article 3(1) of the directive provides that,

“The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.”

The Directive goes on to provide that member states may create a continuing liability on the Transferor, post-transfer; however, this has not been transposed into SI 131/2003.   As a result, the basic principle in Article 3 of the Directive that liability passes from the Transferor to the Transferee is the applicable law in Ireland.

In the decision of the Court of Justice of the European Union (CJEU) in Berg v Besselsen IRLR 447, the Court referred to the option of member states to enact legislation to include the Transferor in ongoing liabilities under a contract of employment; but, where this has not happened, the Court stated:

“It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer…”

Liability in this Case

In the case under consideration, there is no dispute that, 30 days before the transfer took place, the Transferor engaged in meetings with the transferring employees to notify them of the transfer and to discuss the implications for them arising from the transfer. This complaint is about the extent of the consultation and the complainant is not satisfied that the consultation was adequate.

Having considered the effect of the legislation, and the jurisprudence of the CJEU, I find that a complaint against the Transferor may not be pursued under SI 131/2003, as all liabilities under the complainant’s contract of employment passed to the Transferee on the date of the transfer, February 6th 2017.

I have concluded that I have no jurisdiction to adjudicate upon a complaint against the Transferor in this case, and therefore, complaints CA-0012971-003, CA-0012971-005 and CA-0012971-006 are not upheld.

TUPE, liability of the Transferor