ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007779
Parties:
| Complainant | Respondent |
Anonymised Parties | A Warehouse Operative (4) | A Logistics Company |
Representatives | SIPTU | Ken Stafford Management Services |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00008915-001 | 22/12/2016 |
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-00009264-001 | 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-00009264-003 | 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-00009264-004 | 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-00009264-005 | 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-00009264-006 | 24/01/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00009264-008 | 24/01/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009264-009 | 24/01/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009264-010 | 24/01/2017 |
Date of Adjudication Hearing: 09/08/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
There was a transfer of a previous undertaking to a previous entity (and the respondent in ADJ 7776) on October 28th 2015. The complainant continued in employment until about a year later when another transfer took place to the current respondent. The complainant transferred on both occasions. However, she has been on certified sick leave since August 2016. |
Summary of Complainant’s Case:
The complaints are as follows. CA 0008915-001 is a complaint under the Payment of Wages Act for payment of sick pay. CA-00009264-001 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. CA-00009264-004 relates to the alleged breach of Regulations 7 in respect of the continuity of representational arrangements and CA-00009264-005 and 006 to failure to engage with the representatives. (006 was withdrawn at the hearing). CA-00009264-008 is a complaint of gender discrimination under the Employment Equality Acts. Complaints CA-00009264-009 and 010 relate to changes in starting times and failure to provide statutory notice of working hours under the Organisation of Working Time Act 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. |
Summary of Respondent’s Case:
The respondent defends its position on the bass that the complainant, while continuing to be an employee of the respondent has never attended for work during its ownership of the business. The respondent assumed ownership of the business on October or November 2016 and the complainant has been on sick leave since the previous August. There had been a previous transfer about a year before the current respondent took over. The facts grounding the complaints are historic facts for which the respondent has no responsibility. |
Findings and Conclusions:
This is an entirely misconceived set of complaints. The bulk of the complaints were made in January 2017, (one in December 2016) and relate to events which took place in late 2015 and early the following year. They have been ‘cut and pasted’ and duplicated from other complaints which have been fully and appropriately considered in ADJ 7776. Many of the facts on which the complaints are based took place during the tenure of a previous transferor. This might not in itself prevent liability passing to the current respondent, but the complaints would have to be made within the statutory time limits and in respect of a bona fide complaint under the Regulations. No case has been made out and accordingly, all the complaints are dismissed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out above I dismiss complaints CA 0008915-001, CA-00009264-001, 003, 004, 005, 006, 007, 008, 009 and 010. |
Dated: 12th December 2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
TUPE. |