Complainant

Respondent

Anonymised Parties

A receptionist

A medical clinic

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-00016267-008

08/12/2017

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-00016267-010

08/12/2017

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-00016267-012

08/12/2017

The complainant worked as a receptionist in a medical clinic in Dublin which was a subsidiary of a Polish company. In October 2016, she went on maternity leave and in March, she was informed that the parent company had decided to close the clinic due to “the very challenging financial situation in Ireland.” In August 2017, she phoned the office where she worked before her maternity leave and discovered that a clinic was operating under a different name in the premises where she worked and that many of the staff of the former clinic were working there. She assumes therefore that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 apply to her and that she should have been transferred to the new undertaking. However, on October 4th 2017, at the end of her additional maternity leave, she was made redundant, paid a statutory lump sum and issued with a P45.

A number of complaints under ADJ-00012277 were submitted against the transferor and these are addressed in that decision. The complaints adjudicated upon here are against the transferee.

Before the hearing on June 17th 2018, I checked the status of the company that the complainant worked for until the date of her redundancy. This company is registered with the Companies Registration Office (CRO), it does not appear to be closed down or insolvent and filings are up to date. The company operating under the name of the new clinic who is the respondent in this case, is also in operation, having been set up in February 2017.

Preliminary Issue: Has the Complaint Been Submitted on Time?

The respondent did not attend the hearing of this complaint, and the evidence relied on to reach a decision is the complainant’s evidence. In her application form, she said that the transfer of the business took place in March 2017. The complainant was contacted by her manager in March and informed that the clinic she worked for was closing down. It was not until August 14th 2017, that the manager confirmed that a new clinic had been set up, but he would not give the complainant any information about the transfer of her employment. As the respondent company was registered in February 2017 and the complainant was informed that her old company closed in March, it follows that the transfer is likely to have taken place in March 2017.

In accordance with Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, an adjudication officer may not entertain a complaint if it has been presented after the period of six months beginning on the date of the contravention to which the complaint relates.   If the transfer took place in March 2017, then, in most circumstances, the complaint should have been submitted before August 31st 2017. However, the complainant was dismissed on October 4th 2017, at the end of her maternity leave and accrued holidays. It is my view that this is the date on which the contravention occurred, as this is when it became evident that the complainant’s employment would not transfer to the new business. As the complaint was submitted on December 8th 2017, I am satisfied that it has been submitted on time.

As the respondent did not attend the hearing, no evidence was submitted in support of their position with regard to the complaints.

Chronology of Events

The complainant commenced maternity leave on October 1st 2016 and she was due to return to work on March 31st 2017. In mid February, she applied for 16 weeks’ additional leave, bringing the end date of her maternity leave to July 23rd 2017. On March 2nd 2017, she received a letter by e mail from her manager letting her know that the clinic “will cease operations in March 2017, which will result in staff redundancies.”

On April 11th, her manager wrote again confirming the complainant’s decision to extend her maternity leave. He also stated, “I will meet with you at the conclusion of your maternity leave to discuss the effect of the closure of the clinic on your employment and I look forward to seeing you.”

On June 14th, the complainant said that she wrote to her manager to say that she would like to take parental leave. She said that she didn’t get a reply to this e mail and she wrote to him again on July 20th. That day, her manager replied confirming that the complainant’s additional maternity leave ended on July 23rd 2017. In this mail, he went on to say:

“You are also entitled to 8 days off as equivalent of 8 bank holiday Mondays during your maternity leave from 24th of July to 2nd of August inclusively. Additionally, you are entitled to 31 days of holiday leave for a period of your maternity leave – from 3rd of August to 19th of September inclusively.”

On August 2nd, the complainant said that she phoned her manager, but got no reply.   She sent two e mails on August 4th and got the following response:

“Your holiday leave ends on 19th of September and before that day I would like to meet you to discuss the issue of (name of respondent company) closing down. I am not the employee of (name of the respondent company) anymore and my business phone contact has been terminated. If you would like to contact me by phone you can reach me on (number of Polish land line). I will confirm on Monday the day of our meeting, but most probably it would be 10 or 11 of August.”

On August 9th, the complainant sent an e mail to her manager requesting permission to take her full entitlement to 14 weeks’ parental leave. She also considered the possibility that her request might not get a positive response:

“If, for some reason, I cannot use my parental leave, could you describe the reason and a different possible date? If there is a necessity that I would go back to work – it would be possible to work on weekends? Please let me know who is my current supervisor / boss and with whom I should contact about my case.”

The following day, the complainant’s manager said that he could meet her on August 11th at 12.00 midday, or the following Monday, August 14th. He suggested meeting in a café in Dublin city centre. The complainant wrote back to say that it would be more convenient for her to meet in Sandyford, in Dublin south. The complainant said that around 20 minutes before she was due to meet her manager, he phoned her to cancel their appointment. In the call, he informed her that the company had closed down and that she would be “let go.” On her complaint form, the complainant said that when she asked him about the new undertaking, her manager “was at pains to say he was not involved” with the new clinic and he would not give her details of her new employer. He said that he would phone again to explain the process of terminating her employment.

On August 21st, the complainant said that her manager phoned her and said that it would be better if she did not take parental leave, as the company could not be closed if she was on leave.

The complainant said that she phoned the other receptionists in the clinic around this time and they told her that “everything is still the same, except the new name.”

The complainant said that her manager phoned her perhaps twice after August 21st, but she did not answer his calls. On September 3rd, she said that she sent an e mail with the following request:

“Could you prepare references for me? Write to me to tell me why I have been let go. When will you send me my holiday pay?”

On September 6th, her manager wrote back and attached a payslip for July. He explained that the complainant’s maternity leave ended on July 23rd and that she was on holidays from July 24th until September 18th. He said that she would be paid for the month of August and at the end of September, she would be paid for September. In the mail he said, “after that, we will send you redundancy pay.” He said that he would be in Dublin and that they could meet.

On September 12th, the complainant said that she wrote to her manager asking him when he would be back in Dublin. At this stage, she said that she “really wanted to come back to work.” Her manager replied on the same day and said that he would be in Dublin the next day, Wednesday, September 13th. The complainant said that she wrote back to ask if he needed “something from me about my parental leave.” She said that her manager phoned her but she didn’t answer his call. She explained that she had been advised to get everything in writing and not to rely on phone conversations. She said that her manger then sent her a mail to say they could meet on Wednesday or Thursday. She said that she replied to this e mail as follows:

“Before we meet, I would like to prepare. Do you need paperwork from me about my parental leave?   What is my official date to return to work? Please write down why I’m being let go. Send me all the paperwork you have.”

She said that in this mail, she also asked for a reference. Having got no answer to the e mail above, she sent another on September 15th, with the same requests that she sent on September 12th.

On October 4th, the complainant said that she received a payment of €1,087.80, which is equivalent to five weeks’ pay, the amount that she was entitled to as statutory redundancy. She also received a P45, but no letter setting out the reason for her dismissal.

On October 25th, the complainant said that she sent a final e mail to her manager:

“Could you please answer my questions stated in e mail from 15/09/2017? You’ve informed me that you’re the person delegated by (name of respondent) to make a final enclosure of the case of the company. You work at the moment in Poland and in Ireland, you’re just to sort out formalities. I understand that I am not your employee any more, however, I would like you to send me relevant papers, so I could be on the social welfare payment after my parental leave will finish. That kind of document is required in social welfare.

“End of year is approaching and I would like to sort out all the formalities connected with my job and parental leave. If you’ll leave me without an answer til the end of the month, I wouldn’t have a choice, but direct my questions and look for help at the institution that helps employees with difficulties.”

She did not receive a reply to this e mail and on December 8th, she submitted 16 complaints against the transferor. She also submitted three complaints against the transferee, under the Protection of Employees (Transfer of Undertakings) Regulations 2003. These complaints are addressed in this decision.

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

Reference number

Outline of Complaint

CA-0016267-008

Under Regulation 4(1) of the Transfer of Undertakings Regulations,

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

This complaint is about the fact that the complainant’s terms and conditions of employment did not transfer from her previous employer. The complainant was dismissed due to redundancy at the end of her maternity leave and she did not transfer to the new undertaking.

The complainant did not make a complaint under Regulation 5, which provides for a complaint about dismissal; however, she submitted a separate complaint against the transferor under the Unfair Dismissals Act 1977 – 2015.

CA-0016267-010

Under Regulation 8(4) of the Transfer of Undertakings Regulations, the transferor and the transferee must inform their employees about the date of the transfer, the reason for the transfer and the implications of the transfer for them.

This complaint is about the fact that the transferee did not consult with the complainant about the transfer of her employment to the new undertaking. The complainant has had no contact with the transferee.

CA-0016267-012

Under Regulation 8(5) and (6) of the Transfer of Undertakings Regulations, where there are no employee representatives in an organisation, the transferee and the transferee must write to the employees to advise them of the date of the transfer, the reason for the transfer and the implications of the transfer for them.

This complaint is about the fact that the transferee did not advise the complainant in relation to the transfer of her employment.

The Legal Framework

The issue for consideration here is whether the respondent complied with Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The relevant sections in respect of these complaints are regulations 4 and 8.

Regulation 4(1) relates to the transfer of contractual entitlements and provides that:

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

Regulation 8 sets out the requirements of the Transferor and the Transferee to inform and consult the employees’ representatives. However, section 8(5) and 8(6) specifically address the circumstances where there are no employee representatives:

“(5) Where there are no employee’s representatives in the undertaking or business of the transferor, or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employee may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

“(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)   the date of the proposed transfer;

(b)   the reasons for the transfer;

(c)   the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and

(d) any measures envisaged in relation to the employees.”

Findings

Having considered the evidence submitted by the complainant, it is apparent that the transferee did not ensure the transfer of the complainant’s terms and conditions to the new undertaking. It is also apparent that the transferee did not consult with the complainant about the transfer, and, in the absence of any employee representatives who were known to her, the transferee did not advise her in writing about the transfer.

On the basis of the complainant’s evidence, I have to conclude that the respondent is in breach of Regulations 4(1), 8(4) and 8(5) and (6) of the Transfer of Undertakings Regulations.

I have decided that these complaints are well-founded and I require the respondent to pay the complainant compensation of eight weeks’ pay. In her complaint form, the complainant said that she earned €1,092 per month which is equivalent to €252.00 per week. Therefore, I have decided that the complainant is to be paid €2,016.

Transfer of undertakings

Complainant

Respondent

Anonymised Parties

A receptionist

A medical clinic

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-00016267-008

08/12/2017

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-00016267-010

08/12/2017

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-00016267-012

08/12/2017

The complainant worked as a receptionist in a medical clinic in Dublin which was a subsidiary of a Polish company. In October 2016, she went on maternity leave and in March, she was informed that the parent company had decided to close the clinic due to “the very challenging financial situation in Ireland.”   In August 2017, she phoned the office where she worked before her maternity leave and discovered that a clinic was operating under a different name in the premises where she worked and that many of the staff of the former clinic were working there. She assumes therefore that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 apply to her and that she should have been transferred to the new undertaking.   However, on October 4th 2017, at the end of her additional maternity leave, she was made redundant, paid a statutory lump sum and issued with a P45.

A number of complaints under ADJ-00012277 were submitted against the transferor and these are addressed in that decision. The complaints adjudicated upon here are against the transferee.

Before the hearing on June 17th 2018, I checked the status of the company that the complainant worked for until the date of her redundancy. This company is registered with the Companies Registration Office (CRO), it does not appear to be closed down or insolvent and filings are up to date. The company operating under the name of the new clinic who is the respondent in this case, is also in operation, having been set up in February 2017.

Preliminary Issue: Has the Complaint Been Submitted on Time?

The respondent did not attend the hearing of this complaint, and the evidence relied on to reach a decision is the complainant’s evidence. In her application form, she said that the transfer of the business took place in March 2017. The complainant was contacted by her manager in March and informed that the clinic she worked for was closing down. It was not until August 14th 2017, that the manager confirmed that a new clinic had been set up, but he would not give the complainant any information about the transfer of her employment. As the respondent company was registered in February 2017 and the complainant was informed that her old company closed in March, it follows that the transfer is likely to have taken place in March 2017.

In accordance with Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, an adjudication officer may not entertain a complaint if it has been presented after the period of six months beginning on the date of the contravention to which the complaint relates.   If the transfer took place in March 2017, then, in most circumstances, the complaint should have been submitted before August 31st 2017. However, the complainant was dismissed on October 4th 2017, at the end of her maternity leave and accrued holidays. It is my view that this is the date on which the contravention occurred, as this is when it became evident that the complainant’s employment would not transfer to the new business. As the complaint was submitted on December 8th 2017, I am satisfied that it has been submitted on time.

As the respondent did not attend the hearing, no evidence was submitted in support of their position with regard to the complaints.

Chronology of Events

The complainant commenced maternity leave on October 1st 2016 and she was due to return to work on March 31st 2017. In mid February, she applied for 16 weeks’ additional leave, bringing the end date of her maternity leave to July 23rd 2017. On March 2nd 2017, she received a letter by e mail from her manager letting her know that the clinic “will cease operations in March 2017, which will result in staff redundancies.”

On April 11th, her manager wrote again confirming the complainant’s decision to extend her maternity leave. He also stated, “I will meet with you at the conclusion of your maternity leave to discuss the effect of the closure of the clinic on your employment and I look forward to seeing you.”

On June 14th, the complainant said that she wrote to her manager to say that she would like to take parental leave. She said that she didn’t get a reply to this e mail and she wrote to him again on July 20th. That day, her manager replied confirming that the complainant’s additional maternity leave ended on July 23rd 2017. In this mail, he went on to say:

“You are also entitled to 8 days off as equivalent of 8 bank holiday Mondays during your maternity leave from 24th of July to 2nd of August inclusively. Additionally, you are entitled to 31 days of holiday leave for a period of your maternity leave – from 3rd of August to 19th of September inclusively.”

On August 2nd, the complainant said that she phoned her manager, but got no reply.   She sent two e mails on August 4th and got the following response:

“Your holiday leave ends on 19th of September and before that day I would like to meet you to discuss the issue of (name of respondent company) closing down. I am not the employee of (name of the respondent company) anymore and my business phone contact has been terminated. If you would like to contact me by phone you can reach me on (number of Polish land line). I will confirm on Monday the day of our meeting, but most probably it would be 10 or 11 of August.”

On August 9th, the complainant sent an e mail to her manager requesting permission to take her full entitlement to 14 weeks’ parental leave. She also considered the possibility that her request might not get a positive response:

“If, for some reason, I cannot use my parental leave, could you describe the reason and a different possible date? If there is a necessity that I would go back to work – it would be possible to work on weekends? Please let me know who is my current supervisor / boss and with whom I should contact about my case.”

The following day, the complainant’s manager said that he could meet her on August 11th at 12.00 midday, or the following Monday, August 14th. He suggested meeting in a café in Dublin city centre. The complainant wrote back to say that it would be more convenient for her to meet in Sandyford, in Dublin south. The complainant said that around 20 minutes before she was due to meet her manager, he phoned her to cancel their appointment. In the call, he informed her that the company had closed down and that she would be “let go.” On her complaint form, the complainant said that when she asked him about the new undertaking, her manager “was at pains to say he was not involved” with the new clinic and he would not give her details of her new employer. He said that he would phone again to explain the process of terminating her employment.

On August 21st, the complainant said that her manager phoned her and said that it would be better if she did not take parental leave, as the company could not be closed if she was on leave.

The complainant said that she phoned the other receptionists in the clinic around this time and they told her that “everything is still the same, except the new name.”

The complainant said that her manager phoned her perhaps twice after August 21st, but she did not answer his calls. On September 3rd, she said that she sent an e mail with the following request:

“Could you prepare references for me? Write to me to tell me why I have been let go. When will you send me my holiday pay?”

On September 6th, her manager wrote back and attached a payslip for July. He explained that the complainant’s maternity leave ended on July 23rd and that she was on holidays from July 24th until September 18th. He said that she would be paid for the month of August and at the end of September, she would be paid for September. In the mail he said, “after that, we will send you redundancy pay.” He said that he would be in Dublin and that they could meet.

On September 12th, the complainant said that she wrote to her manager asking him when he would be back in Dublin. At this stage, she said that she “really wanted to come back to work.” Her manager replied on the same day and said that he would be in Dublin the next day, Wednesday, September 13th. The complainant said that she wrote back to ask if he needed “something from me about my parental leave.” She said that her manager phoned her but she didn’t answer his call. She explained that she had been advised to get everything in writing and not to rely on phone conversations. She said that her manger then sent her a mail to say they could meet on Wednesday or Thursday. She said that she replied to this e mail as follows:

“Before we meet, I would like to prepare. Do you need paperwork from me about my parental leave? What is my official date to return to work?   Please write down why I’m being let go. Send me all the paperwork you have.”

She said that in this mail, she also asked for a reference. Having got no answer to the e mail above, she sent another on September 15th, with the same requests that she sent on September 12th.

On October 4th, the complainant said that she received a payment of €1,087.80, which is equivalent to five weeks’ pay, the amount that she was entitled to as statutory redundancy. She also received a P45, but no letter setting out the reason for her dismissal.

On October 25th, the complainant said that she sent a final e mail to her manager:

“Could you please answer my questions stated in e mail from 15/09/2017? You’ve informed me that you’re the person delegated by (name of respondent) to make a final enclosure of the case of the company. You work at the moment in Poland and in Ireland, you’re just to sort out formalities. I understand that I am not your employee any more, however, I would like you to send me relevant papers, so I could be on the social welfare payment after my parental leave will finish. That kind of document is required in social welfare.

“End of year is approaching and I would like to sort out all the formalities connected with my job and parental leave. If you’ll leave me without an answer til the end of the month, I wouldn’t have a choice, but direct my questions and look for help at the institution that helps employees with difficulties.”

She did not receive a reply to this e mail and on December 8th, she submitted 16 complaints against the transferor. She also submitted three complaints against the transferee, under the Protection of Employees (Transfer of Undertakings) Regulations 2003. These complaints are addressed in this decision.

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

Reference number

Outline of Complaint

CA-0016267-008

Under Regulation 4(1) of the Transfer of Undertakings Regulations,

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

This complaint is about the fact that the complainant’s terms and conditions of employment did not transfer from her previous employer. The complainant was dismissed due to redundancy at the end of her maternity leave and she did not transfer to the new undertaking.

The complainant did not make a complaint under Regulation 5, which provides for a complaint about dismissal; however, she submitted a separate complaint against the transferor under the Unfair Dismissals Act 1977 – 2015.

CA-0016267-010

Under Regulation 8(4) of the Transfer of Undertakings Regulations, the transferor and the transferee must inform their employees about the date of the transfer, the reason for the transfer and the implications of the transfer for them.

This complaint is about the fact that the transferee did not consult with the complainant about the transfer of her employment to the new undertaking. The complainant has had no contact with the transferee.

CA-0016267-012

Under Regulation 8(5) and (6) of the Transfer of Undertakings Regulations, where there are no employee representatives in an organisation, the transferee and the transferee must write to the employees to advise them of the date of the transfer, the reason for the transfer and the implications of the transfer for them.

This complaint is about the fact that the transferee did not advise the complainant in relation to the transfer of her employment.

The Legal Framework

The issue for consideration here is whether the respondent complied with Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The relevant sections in respect of these complaints are regulations 4 and 8.

Regulation 4(1) relates to the transfer of contractual entitlements and provides that:

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

Regulation 8 sets out the requirements of the Transferor and the Transferee to inform and consult the employees’ representatives. However, section 8(5) and 8(6) specifically address the circumstances where there are no employee representatives:

“(5) Where there are no employee’s representatives in the undertaking or business of the transferor, or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employee may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

“(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)   the date of the proposed transfer;

(b)   the reasons for the transfer;

(c)   the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and

(d) any measures envisaged in relation to the employees.”

Findings

Having considered the evidence submitted by the complainant, it is apparent that the transferee did not ensure the transfer of the complainant’s terms and conditions to the new undertaking. It is also apparent that the transferee did not consult with the complainant about the transfer, and, in the absence of any employee representatives who were known to her, the transferee did not advise her in writing about the transfer.

On the basis of the complainant’s evidence, I have to conclude that the respondent is in breach of Regulations 4(1), 8(4) and 8(5) and (6) of the Transfer of Undertakings Regulations.

I have decided that these complaints are well-founded and I require the respondent to pay the complainant compensation of eight weeks’ pay.

Transfer of undertakings