ADJ-00011056

Complainant

Respondent

Anonymised Parties

A Valetor

A Car Company

Act

Complaint 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-00014689-001

29/09/2017

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-00014689-002

29/09/2017

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-00014689-003

29/09/2017

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

CA-00014702-001

29/09/2017

The Complainant is a Polish National and one of three complainants linked to a parallel case against two separately named employers. This case currently stands adjourned from October 2017, He commenced work on 4 February, 2013 as a Valet or and worked a 50-hour week until 28 April, 2017. He received payment of 584.59 euro weekly in nett pay.

Company A is the Employer who last employed the complainant.

Company B is the prospective Employer named in communication to the complainant dated 12 May 2017 as taking over the business from Company A.

Company C is the Respondent named in this case and a previous employer until 4 February 2013 to 29 February 2016 as named by the complainant. 

The Complainants representative gave an outline to the background of this case where the complainant was having difficulty in establishing the identity of his employer. He had been out of work from April 28 ,2017 when Company A sought to transfer.

The Complainants representative confirmed that the complainant had transferred from Company C to Company A on 29 February 2016 in accordance with the provisions of EC (Protection of Employees on Transfer of Undertaking) Regulations 2003. A letter dated February 10, 2016 signalled that Company A had been awarded a contract to provide valeting at the premises of Company C.

On 21 April 2017, the complainant received a letter from Company A indicating that the business was to transfer back to Company C in accordance with the provisions of EC (Protection of Employees on Transfer of Undertaking) Regulations 2003.

On May 2, the Complainant received a communication from Company B “We are sorry to inform you that we do not have a position in our company for you now “On May 4, the complainant received a letter from Company C indicating that there were no suitable positions available.

On May 12, 2017, the complainant received a letter from Company A which referred to a Transfer of Undertakings between Company A and Company B on May 1, 2017, where again the TUPE regulations applied. The Complainant received a P45 from Company A and a confirmation that Company B had been informed of their legal responsibilities.

CA-00014689-001 TUPE Claim: The Complainant contended that Regulation 4 had been breached when his new employer, Company C did not ensure that his terms and conditions transferred from his previous employer, Company A.

CA-00014689-002 TUPE Claim The complainant contended that Regulation 4 had been breached when Company C did not observe the terms and conditions from Company A

CA- 00014689-003 TUPE Claim The complainant submitted that Regulation 5 had been breached as he had been dismissed by Company C.

CA-00014702-001 Unfair Dismissal Claim the Complainant submitted that he had been unfairly dismissed on May 1, 2017 by Company C. He submitted that he had found new work in early August 2017

CA-00014703-001 Minimum Notice Claim: The Complainant submitted that he had been denied hi statutory period of notice by Company C.

The Complainant submitted that Company B operated from a dual site base whereas Company A had operated on the grounds of Company C.

Counsel for the Respondent outlined that Company C was not the employer in this case. The Respondent submitted a letter dated 27 April 2017 from the Respondent Group Operations Director to the HR Manager of Company A.

“It is my understanding that you have directed several your employees in writing that with effect from May 1 they will be employed by this company. You have no such authority to make such direction and I call on you forthwith to withdraw such direction to your employees. We have no obligation of any kind, employment or otherwise towards your employees “

CA-00014689-001 TUPE Claim the Respondent rebutted the claim and denied employer status

CA-00014689-002 TUPE Claim: The Respondent rebutted the claim and denied employer status

CA- 00014689-003 TUPE Claim the Respondent rebutted the claim and denied employer status

CA-00014702-001 Unfair Dismissal Claim: The Respondent rebutted the claim and denied employer status

CA-00014703-001 Minimum Notice Claim: The Respondent rebutted the claim and denied employer status

I have sought to probe the facts submitted in this case and I have considered both submissions, while being fully aware that the “first in time case “The Complainant v Company A and B stands adjourned.

The Irish Government decided to adopt the wording of the 2001 Council Directive No 2001/23/EC, whose aim was to reduce the differences then existing in Member states on the protection of employees in situations where the ownership of the undertaking in they worked changed resulting in them having a new employer. S.I. 131/2003 evolved from that base.

An Employee is defined in the regulations as a person of any age who has entered or works under (or where employment has ceased) a contract of employment.

The aim of the Directive is to ensure continuity of employment relationships within an economic entity. The decisive criterion for establishing the existence of a transfer within the meaning of the Directive is whether the entity in question retains its identity as by the fact that its operation is actually continued or resumed. Suzen V Zehnacker Gebaudereinigung Gmbh Krankenhaus service, C -13/95, [1997] ECR 1-1259.

The Regulations apply to any transfer of an undertaking, business or part of an undertaking or business from one employer to another employer because of a legal transfer (including legal/factual events like the assignment of forfeiture of a lease or merger. Isles of Scilly Council v Brintel Helicopters ltd an Ellis [1995] IRLR 6.

An “employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

In analysing the facts of this case, I found a high level of confusion and inconsistency. The Complainant had an expectation that Company A was transferring the business back to Company C on May 1, while this was clarified between the Principals of both companies, the complainant was not informed. Neither party presented a copy of the letter referred to as April 28 issue. I established that the material, equipment a plant attributable to Company A was to be removed from site by Saturday April 29, this suggested to me an even greater trading distance between Company A and Company C. There was also a reference to some number plates, but no confirmation of sale or transfer of assets .

I found the letter dated May 12 to be most informative when Company A confirmed that a transfer of undertakings occurred between Company A and B on May 1, 2017 and Company A was in correspondence with Company B in seeking to address their apparent failure to hire the complainant. Company C confirmed that they were unable to offer the complainant work on May 4.

Based on the above log of events and a careful analysis of the documentation produced in this case, I have not been able to establish that Company C amounts to the employer for any aspect of these complaints. The Respondent denied that the company had entered a lease arrangement with either Company A or Company B.

Given that the complaints were lodged on September 29, 2017, I find it regrettable that the Respondent did not move to clarify the employment status from the outset. However, the clarification at the hearing was unambiguous. I could not find signs of an employment relationship under any of the three pieces of legislation relied on by the complainant in this case. I did not establish that the complainant was employed by the respondent .

I appreciate that the complainant is highly frustrated in seeking to identify a mark for an employer in this case and it did not assist in my not having the benefit of sight a contract of employment in the case.

Regulation 10 of S/I 131 /2003.        (1)     A complaint that an employer has contravened any of these Regulations (other than Regulations 4(4)(a) and 13) in relation to an employee may be presented to a rights commissioner by:

          (a)     the employee, or

          (b)     a trade union, staff association or excepted body on behalf and with the consent of the employee.

                                      (2)      A complaint under paragraph (1) shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

                                      (3)      A copy of a notice under paragraph (2) shall be given to the other party or parties concerned, by the rights commissioner concerned.

                                      (4)      Where a complaint is presented to a rights commissioner under paragraph (1), the rights commissioner shall -

          (a)     give the parties an opportunity to be heard and to present any evidence relevant to the complaint;

          (b)     give a decision in writing in relation to the complaint; and

          (c)     communicate the decision to the parties.

                                      (5)      A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

          (a)     declare that the complaint is or, as the case may be, is not well founded;

          (b)     require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

          (c)     require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

          (i)      in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

          (ii)      in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,

                                                                            in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977 ,

                                                                            and a reference in this paragraph to an employer shall be construed, in a case where ownership of the relevant undertaking or business, or the part concerned of that undertaking or business, of the employer changes after the contravention to which the complaint relates occurred, as a reference to the person who, by virtue of the change, becomes entitled to such ownership.

CA-00014689-001 TUPE Claim

I find that I do not hold the jurisdiction to hear this case as the Respondent does not fulfil the description of employer as defined in the Regulations. The Respondent is neither Transferor or Transferee. The claim is not well founded.

CA-00014689-002 TUPE Claim

I find that I do not hold the jurisdiction to hear this case as the Respondent does not fulfil the description of employer as defined in the Regulations. The Respondent is neither Transferor or Transferee. The claim is not well founded.

CA- 00014689-003 TUPE Claim I find that I do not hold the jurisdiction to hear this case as the Respondent does not fulfil the description of employer as defined in the Regulations. The Respondent is neither Transferor or Transferee. The claim is not well founded.

CA-00014702-001 Unfair Dismissal Claim  I have found that the Respondent is not the correct named employer and I do not have the jurisdiction to proceed. I would like to add a salutary note at this juncture for consideration by the parties. A complainant may not obtain relief in respect of a dismissal under both the Regulations and the Acts.

CA-00014703-001 Minimum Notice Claim:     I have found that the Respondent is not the correct named employer and I do not have the jurisdiction to proceed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

1.CA-00014689-001 TUPE Claim: The claim cannot succeed due to lack of jurisdiction.

2.CA-00014689-002 TUPE Claim: The claim cannot succeed due to lack of jurisdiction.

3.CA- 00014689-003 TUPE Claim: The claim cannot succeed due to lack of jurisdiction.

4.CA-00014703-001 Minimum Notice Claim

Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I decide in accordance with the Act.

The Employer is not named correctly in this case, the claim falls.

5. CA-00014702-001 Unfair Dismissal Claim

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. The Employer is not named correctly in the case, the claim has not succeeded . 

Transfer of Undertakings, Unfair Dismissal and Minimum Notice