Complainant

Respondent

Anonymised Parties

Jetty Operative

Service Provider

Representatives

Fergal T. Fitzgerald Doyle B.L. instructed by Crossan Hanratty & Co Solicitors

David Boughton B.L. instructed by Clark Hill Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00020646-001

19/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00020646-002

19/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020646-003

19/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020646-004

19/07/2018

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-00020646-005

19/07/2018

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-00020646-006

19/07/2018

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-00020646-007

19/07/2018

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-00020646-008

19/07/2018

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-00020646-009

19/07/2018

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-00020646-010

19/07/2018

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-00020646-011

19/07/2018

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-00020646-012

19/07/2018

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-00020646-013

19/07/2018

The Respondent in this case provides services to client companies in Dublin Port. With effect from 1st April 2018, certain services which had been provided to a client company by another undertaking were transferred to the Respondent under a Transfer of Undertakings (TUPE).

The Complainant was employed by the undertaking which had previously held the contract (the Transferor).   The Complainant commenced employment with the Transferor as a jetty operative on the 15th April 2009.   The Complainant’s employment ceased on the 31st March 2018.

The Complainant has submitted complaints against the Respondent (the Transferee) under a range of legislation relating to the cessation of his employment and the TUPE process. The Complainant has also submitted parallel complaints against the Transferor which are subject to a separate Adjudication Officer Decision – ADJ-00016034.

The Respondent rejects the complaints on the basis that the Complainant was not at any time identified by the Transferor as being an employee who was entitled to transfer to the Respondent as per the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The Complainant submits that:

·         Unbeknownst to him and his fellow employees the Transferor’s contract with the client company was up for tender sometime in December 2017. The Complainant understands that the Transferor lost out in a tender process to the Transferee who was awarded the contract sometime in January 2018.

·         The Transferor were dissatisfied with this development and that this was the cause of certain difficulties arising as between the Transferor and the Transferee during the course of the transfer process.

·         At no time was the Complainant advised by the Transferor or the Transferee of the circumstances surrounding the transfer of undertakings scenario. The Complainant was not consulted or advised of the implications for him in transferring to the Transferee, nor was he provided with any written material or directed to where he might find any such material. It is submitted that this occurred in the context of the Complainant being already unsure of his terms and conditions with the Transferor.

·         In the present matter the Complainant at no time refused to accept the transfer, nor was he party to any communications or transfer arrangements provided by his employers in advance of the transfer.

·         In the present matter and for no apparent reason the Transferor failed and/or refused to provide any clear information with regard the transfer, failed to provide clarity with regards to what, if any material changes there would be to the Complainant’s terms and conditions of employment. (In fact, the Complainant’s employer actively discouraged employees and advised that they not trust the transferee company, thus further confusing matters for the Complainant).

·         The Transferor being disgruntled with the loss of the contract to its competitor the Transferee, determined to drag its feet with the possible intention that they would frustrate the smooth transfer to the transferee regardless of the consequences, or collateral damage.

·         The Transferor ensured that in the absence of clarity, confusion reigned, resulting in the dismissal on the 31st March 2018 of the Complainant by reason of the actions and or inaction of the disgruntled Transferor.

The Complainant has submitted the following precedents in support of his case: Symantec Limited v Declan Leddy [2013] 2 IR 1; Katsikas v. Konstantinidis (Joined Cases C-132, 138 & 139/91)[1992]E.C.R. 1-6577; Merckx v. Ford Motors Company Belgium SA (Joined Cases C171 & 172/94)[1996] E.C.R. 1-1253; OCS One Complete Solution Limited v Paul Grant [201 8] 3 JIEC 2302; Rapier Contract Services Limited v Adina Predut [2018] JIEC 1603.

The Respondent submits that:

·         Prior to January 2018, the Transferor held a contract with a client company for jetty operative and shipping supervision work in Dublin Port.

·         On the 5th December 2017, the Respondent was invited to tender for the client company contract and was formally awarded said contract on the 31st January 2018.

·         The Respondent sought information from the Transferor regarding the transfer of undertakings on multiple occasions between the 31st January and the 1st April 2018, being the commencement date of the contract, i.e. the "handover date". Despite repeated requests, no such information was forthcoming until the 29th March 2018.

·         The Respondent was and is a stranger to the relationship between the Complainant and the Transferor.

·         The Complainant was not at any time identified by the Transferor as being an employee who was employed under the client company contract and therefore entitled to transfer to the Respondent company as per the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.l. No. 131 of 2003) ("TUPE Regulations"). In fact, at no time did the Transferor refer to the Complainant in any capacity.

·         The Transferor eventually provided a list of employees who were transferring to the Respondent company under the client company contract to the Respondent on the 29th March 2018. The Complainant did not appear on this list.

·         The Complainant was at no time employed by the Respondent.

The Respondent has submitted the following precedents in support of their case: Symantec Limited v Declan Leddy [2013] 2 IR 1; Katsikas v. Konstantinidis (Joined Cases C-132, 138 & 139/91)[1992]E.C.R. 1-6577; Merckx v. Ford Motors Company Belgium SA (Joined Cases C171 & 172/94)[1996] E.C.R. 1-1253; OCS One Complete Solution Limited v Paul Grant [201 8] 3 JIEC 2302; Rapier Contract Services Limited v Adina Predut [2018] JIEC 1603.

The Complainant referred complaints to the Workplace Relations Commission under a range of legislation against both the Transferor and the Transferee.

I have dealt with the complaints against the Transferor in Adjudication Officer Decision ADJ-00016034.   In that Decision, I found that the Complainant was unfairly dismissed by the Transferor and that the termination of the Complainant’s employment occurred prior to the effective date of the Transfer of Undertakings.

I find, therefore, that the complaints which the Complainant has submitted against the Transferee (the herein Respondent) are not well founded.

I find that the complaints which the Complainant has submitted against the Respondent are not well founded.

Transfer of Undertakings, Unfair Dismissal