Complainant

Respondent

Anonymised Parties

A security officer

A security 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-00016935-001

18/01/2018

The complainant is a security officer and he transferred to the respondent company on March 1st 2012, in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Transfer Regulations.”) On April 20th 2017, he transferred again to a third company.   This complaint is about the non-payment of overtime between 39 hours and 48 hours per week and is against the second company, where he was employed from March 2012 until April 19th 2017.

At the hearing, the respondent submitted that they had no liability with respect to the complainant for three reasons. First, the complainant is employed by a different company and the respondent claims that all liabilities have transferred to the new employer.   Second, the complaint was submitted to the WRC more than six months after the complainant transferred from the respondent to the transferee. Finally, the complaint relates to a claim for overtime between March 2012 and April 2017, and during time, although he was represented by SIPTU, the complainant did not raise the issue as a grievance, nor did he make any attempt to resolve the matter between him and his employer.

At the hearing, these issues were considered in the first instance as preliminary matters.

The Complaint has been Submitted Against the Wrong Employer

The respondent’s position is that the complainant transferred to a new employer on April 20th 2017. In accordance with the Transfer Regulations, all his right and any liabilities of his former employer transfer to his new employer. The respondent referred to ADJ 00010161 heard by my colleague, Mr Eugene Hanly on November 6th 2011. This was a complaint against this respondent by a colleague of the complainant in this case. In his decision, Mr Hanly agreed that the complaint was submitted against the wrong employer as, upon the transfer of an undertaking, the liability for a breach of statutory rights and obligations transfers to the transferee, that is, the new employer.

The Complaint has not been Submitted on Time

The complainant last worked for the respondent on April 20th 2017, and his complaint relates to his contention that he was not paid for overtime he worked after 39 hours per week from March 2012 until April 2017. He submitted his complaint to the WRC on January 18th 2018.   The respondent’s position is that no reasonable cause has been presented by the complainant for his failure to submit the complaint during the time he was employed by the respondent, or at least, within six months of the termination of his employment in April 2017.

The Issue was Never Raised as a Grievance

Between March 2012 and April 2017, when he was employed by the respondent, the complainant never raised the issue of an overtime claim directly with his employer. While he was represented by SIPTU, and he and his colleagues reached agreement on some other matters with the support of their SIPTU representative, this issue was never raised. The respondent’s position is that the issue of overtime was resolved as part of an agreement on a 42 hour working week, and that, during his employment, there was no actual grievance in respect of overtime earnings.

The Complaint has been Submitted Against the Wrong Employer

The complainant’s position is that his grievance is with the company that he transferred to in April 2012, and not his current employer. He accepts that his terms and conditions transferred to his current employer. He claims that it should not be the responsibility of the transferee to pay for the hours of overtime he worked with the respondent.

The Complaint has not been Submitted on Time

In response to this issue, the complainant said that he and his colleagues had a meeting about overtime in September 2017. He said that he looked for help from SIPTU but got no reply to a letter that he sent to his representative.

The Issue was Never Raised as a Grievance

The complainant agreed that he and his colleagues did not communicate with the respondent about their grievance about the non-payment of overtime. He said that they were afraid of the implications of raising a grievance, and that they didn’t want to run the risk of being moved to a different site or of having their roster changed.

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 which has been transposed in the Regulations as Regulation 3, 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…”

The Complaint has been Submitted Against the Wrong Employer

It is apparent that the complainant transferred to the respondent on March 1st 2012 and on April 20th 2017, he transferred from the respondent’s company to a new employer. Having considered the effect of the legislation, and the jurisprudence of the CJEU, I find that a complaint against this respondent, 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, April 20th 2017.

The Complaint has not been Submitted on Time

Regulation 10(6) of the Transfer Regulations provides that complaints must be submitted to a rights commissioner (now the Director General of the WRC),

“…within the period of six months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period not exceeding six months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.”

From the evidence submitted by the complainant, it is apparent that the non-payment of overtime about which he complains was a grievance from the date that he transferred to the respondent in March 2012. It was still a grievance in April 2017 when he transferred to the transferee. I find that there is no reasonable cause for not submitting a complaint between March 2012 and April 2017. In any event, there is no reasonable cause for the complaint not being submitted before October 19th 2017 at the latest, which is six months from the last day that he worked for the respondent. As it was not submitted within this timeframe, I find that the complaint is out of time.

The Issue was Never Raised as a Grievance

I note the complainant’s reasons for not submitting this issue as a grievance while he was employed by the respondent. As I have found that the first two preliminary issues go against the complainant, the failure to process the matter as a grievance is now of no consequence.

As it has been submitted incorrectly against the transferor, I have decided that this complaint is misconceived. In addition, as I have found that it has been submitted out of time, I have no jurisdiction to hear the complaint.

Transfer of undertakings regulations