Complainant

Respondent

Anonymised Parties

A Warehouse Operator

A Distributor (3)

Representatives

SIPTU

Ken Stafford Management Consultancy Services

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-00009264-002

24/01/2017

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-00009264-007

24/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00003946-012

19/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00009264-011

24/01/2017

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-00003946-001

19/04/2016

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-00003946-003

19/04/2016

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-00003946-004

19/04/2016

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-00003946-005

19/04/2016

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-00003946-007

19/04/2016

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

CA-00003946-009

19/04/2016

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

CA-00003946-010

19/04/2016

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-00004003-001

21/04/2016

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-00004003-003

21/04/2016

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-00004003-004

21/04/2016

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-00004003-005

21/04/2016

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-00004003-007

21/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00004003-009

21/04/2016

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

CA-00004003-010

21/04/2016

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

CA-00004003-011

21/04/2016

There was a transfer of undertaking to the current respondent on October 28th 2015 where she continued in employment until about a year later when another transfer took place.

The complainant transferred on both occasions. However, she has been on certified sick leave since August 2016.

The complaints are as follows.

For convenience and ease of reference the following complaints under the TUPE will be referred to as the first group of complaints;

CA-00003946-001 and 003 relates to the failure to transfer the complainant’s terms of employment on the same basis as they had been with the transferor. The transferee failed to transfer the complainant on the same terms as she enjoyed with the transferor and therefore breached Regulation 4.

These changes were acknowledged by the transferee HR Manager at a meeting in December 2015 but were told that they would not be reverting to their previous terms of employment.

This was followed in January 2016 by a reduction in the complainant’s hours to two or three days per week with a reduction in income of up to sixty percent.

CA-00003946-004 relates to the alleged breach of Regulations 7 in respect of the continuity of representational arrangements. For example, the respondent failed to answer correspondence from the complainant’s trade union and discontinued the deduction at source facility for union subscriptions,

Complaints CA-0003946-005 and 007 relate to breaches of Regulation 8 and the respondent’s failure to comply with the information and consultation requirements. There is an obligation to inform employees representatives affected by the transfer ‘not later than 30 days before the transfer is carried out’ regarding their conditions of employment. This obligation falls on both the transferor and transferee.

Other complaints relate to changes in starting times and failure to provide statutory notice of working hours, CA-00003946-009 and 010, under the Organisation of Working Time Act , loss of sick pay CA-00003946-012 (Payment of Wages Act).

She lost overtime, but the loss was only €18.00.

In respect of the changes in working time the complainant’s main concern is the inadequate notice given in all cases

Complaint CA-00004003-009 arises under the Employment Equality Act and is based on the gender ground.

The transferor repeatedly treated a male comparator more favourably in many respects.

He was given preferential treatment in that he was not required to clock in or out, was given overtime and work previously carried out by the complainant and put in a supervisory position over her and had his hours preserved when the complainant’s hours were reduced.

In summary the complainant says that Regulations 4, 7, and 8 of the Transfer of Undertakings Regulations have been breached and that maximum compensation of two years’ salary for the breach of Regulations 4 and 7 should be awarded and four weeks compensation for breach of the information and consultation regulation in the amount of €1752.

The complainant seeks compensation also for the breach of the other Acts as outlined above.

In respect of ‘the first group of complaints’ the respondent sets the scene by saying that the transfer took place in a context of extreme trading difficulty; and without immediate action of the sort which did take place the transferor would have ceased trading and the complainant and her co-workers would have lost their jobs.

The transferor had accumulated losses of over one million euros in the previous two years and was insolvent. It went into receivership on November 4th and the process of the transfer was effected within twenty-four hours.

Therefore. while it is accepted that there was no consultation or information period this was because of the exceptionally bad trading situation in which the transferor found itself.

The respondent denies that the terms of employment changed.

A new contract was proposed in February 2016 four months after the transfer and it is perfectly entitled to do this. The arrangements for sick pay remained as they had been in the previous contract, and the reduction to a three day week was for a brief period in January 2016 only.

The respondent did not withdraw trade union representation rights. The union sent correspondence to a wring address which was never received by the respondent.

In relation to sick pay, likewise there was no change. The terms of the sick leave scheme complainant enjoyed with the transferor did not contain a contractual entitlement to sick pay and the respondent was willing to apply the terms of the discretionary scheme (three weeks) to the complainant.

Regarding the complaint under the Equality Act, the respondent complains that it received no prior information of the complaint which was going to be made at the hearing as is required under the Act.

In any event the respondent says that the named individual is not a valid comparator. He is paid at a higher level and is in a different grade. He gets a meal allowance which is payable to truck drivers only and he is paid commission. He was not even in the same department as the complainant.

He was not, al alleged given a wage increase although the respondent did negotiate a new wage structure for its drivers.

Time sheets offered in evidence showed that the comparator travelled and did differing types of work and he did not have the same duties as the complainant. He was primarily a driver while the complainant was a warehouse picker.

The respondent denies that the comparator was given any position of authority over the complainant but he was a keyholder.

Likewise, it is denied that he got preferential access to Saturday working.

In respect of the differential treatment regarding the reduced working hours the comparator’s hour were not reduced because he was a driver and the ‘runs’ had to be done any even if there were lighter loads; the need to temporarily reduce hours arose only in the warehouse.

Any difference in treatment of the complainant arose because her role and job were fundamentally different and the complainant has not made out a prima facie case.

There was a possible male comparator in the same role as the complainant who, oddly has not been chosen for the purposes of the complaint.

This was an extremely difficult hearing to manage, due in no small measure to a failure by the complainant’s representative to case-manage and properly prepare the complaint for the hearing and eliminate quite obvious duplication until the day of the hearing. In respect of this complainant there were five distinct ADJ listings and a total of nearly seventy complaints; many if not most of the duplicated.

Apart from any other consideration a respondent is entitled to be on clear notice of the complaints s/he must address at the hearing.

While the primary responsibility to fulfil the consultation and information obligations will normally fall on the transferor before the transfer takes place (although there is a legal liability on both transferor and transferee) liability for the failure to do so will pass to the transferee and is therefore validly a matter for this respondent.

The respondent did not dispute the failure to comply with the information and consultation requirements and pleads in mitigation a sort of commercial ‘force majeure’ which required immediate action to keep the business running and to preserve employment, which it succeeded in doing.

It expresses surprise that it should have been pursued in this way by a small number of employees, despite sustaining them in employment (although the current complainant has been on extended sick leave since August 3rd 2016).

Most cases involving breaches of this sort arise from situations where problems arise after the transfer, redundancy or other serious changes to the employee’s contract.

In this case the complaint arises from a revised contract of employment presented to the complainant on (or in any event dated) February 15th 2016. It has all the appearance of a generic document customised for the respondent. This may explain some of the more obviously ridiculous terms, such as the insinuation of a probationary period for, in this case an employee who had fifteen years’ service.

Other changes related to the possibility of relocation, uncertainty about starting and finishing hours etc. Some were relatively minor relating to the provision of tea, water, and toilet paper.

The complainant said that the sick leave arrangements had been changed but this was denied by the respondent at the hearing.

The complainant did not sign this contract and as a matter of law, until they are changed with the complainant’s consent the terms of her previous contract apply, (noting that not all of the above may be considered contractual entitlements.)

She communicated this to the respondent on February and there the matter lay.

In addition, the complainant submitted an undated letter (probably November 2015) from the respondent which contains the following;

‘Your role will not, however, be relocated and you will continue to work from your existing location, carrying out the same duties and functions as before. You will transfer on your existing terms and conditions of employment and with full continuity of service provided.

Given this very clear statement, the February 2016 contract was clearly an aberration and of no standing whatsoever.

The alleged reduction on wages resulted from a temporary period of short term working.

The complaints relating to the information and consultation requirements are CA-0003946-005 and 007. These were clearly not complied with and these are upheld.

In general, it seems the respondent carried over the complainant’s contract to a very large extent and this must have some bearing on how I approach the matter of compensation.

CA-0003946-004 relates to the alleged denial of trade union representation and seems to have been based on the failure of the respondent to reply to correspondence which it says it did not receive. There is also an issue about deduction of trade union subscriptions at source.

The respondent indicated that it had no difficulty in continuing to deal with the union and I do not accept that the respondent terminated the representational entitlements of the trade union and the issues arising here seem to be as much to do with communications. I do not uphold CA-0003946-004

As noted above it appears also that the employees did transfer largely on the basis of their previously existing terms and conditions of employment. There is no requirement that the terms at the point of transfer remain set in stone for ever; a transferee will, in due course have the same rights as the transferor would have had to vary conditions of employment subject to the appropriate requirements for consultation and agreement.

The complaint in this case is that hours were reduced for a brief period some months after the transfer as a result of adverse trading conditions and that a new contract issued on February 25th 2016, three months after the transfer had variable starting times. There was also a claim for the loss of overtime in the amount of €18.00. These are complaints CA-0003946-001 and 003 and these are not upheld. Related complaints are made under the Organisation of Working Time and Payment of Wages Acts below.

I do not consider these to be breaches of the regulations.

CA-0003946-009 and 010 (Organisation of Working Time Act) arises from the failure of the respondent to give the complainant twenty four hours notice of her working hours. While the complainant accepted the changes she was not happy about the short notice.

I accept the complainant’s submission on this point.

CA-0003946-012 relates to the alleged non-payment of sick pay. The complainant’s submission was that her conditions of employment ‘included payment of sick pay for the duration of illness’. This was disputed by the respondent who submitted that the previous contractual entitlement was to a period of three weeks, and undertook to make a payment accordingly.

Therefore, I make no award in respect of this complaint.

In relation to complaint CA-0004003-009 under the Employment Equality Act I find that the complainant has not made out a prima facie case. The supposed comparator was employed on a quite different role and set of terms and conditions of employment.

Her complaints of less favourable treatment simply ignore these distinctions.

The comparator was primarily a driver and some of his specific conditions reflected this (a meal allowance). It is noteworthy that the complainant could have, but declined to select a comparator who was at her own grade.

Accordingly, this complaint is not upheld.

I uphold complaints CA-0003946-005, 007 under the Transfer of Undertakings Regulations and award the complainant €750. I uphold complaints CA-0003946-009 and 010 and award the complainant €850.

I do not uphold complaints CA-0003946-001, 003, 012 and complaint CA-0004003-009 for the reasons set out above.

All complaints numbered CA-00009264 and CA-00004003 (except -009) were withdrawn.

TUPE, Equality