Complainant

Respondent

Anonymised Parties

Jetty Operative

Service Provider

Solicitor

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

Management Support Services (Ireland) Ltd

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-00020909-001

19/07/2018

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

CA-00020909-002

19/07/2018

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

CA-00020909-003

19/07/2018

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

CA-00020909-004

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-00020909-005

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-00020909-006

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-00020909-007

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-00020909-008

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-00020909-009

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-00020909-010

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-00020909-011

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-00020909-012

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-00020909-013

19/07/2018

The Complainant commenced employment with the Respondent as a jetty operative on the 15th April 2009.   The Complainant’s employment ceased on the 31st March 2018.

The Complainant was employed by the Respondent to work on a contract held by the Respondent with a client company for certain work at Dublin Port.

With effect from 1st April 2018, the Respondent’s contract with the client company was awarded to another company which resulted in a Transfer of Undertakings (TUPE) situation.

At time of the TUPE, the Complainant had outstanding issues in relation to disciplinary proceedings which occurred in October 2017.

The Complainant has submitted complaints under a range of legislation relating to the cessation of his employment and the TUPE process. The Respondent rejects the complaints.

The claim under Section 39 of the Redundancy Payments Act, 1967 (CA-00020646-002) was withdrawn at the hearing.

The Complainant has also submitted parallel complaints against the Transferee which are subject to a separate Adjudication Officer Decision – ADJ-00016032. The following specific complaints which have been taken against the Transferee are addressed in that Decision: CA-00020646-005; CA-00020646-008; CA-00020646-010 and CA-00020646-012.

The Complainant submits that:

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

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

·         On the 7th March 2018 the Complainant received a letter from the Respondent enquiring as to his membership or otherwise of SIPTU for the purposes of provisions under the TUPE Regulations and inter alia advised that the Transferee would be taking over from the Respondent. This was the first time that the Complainant was made aware of any matter concerning a transfer of undertakings scenario. Further to this, the said letter indicated that the employer would make arrangements to consult with non-members of SIPTU. The Complainant was not a member of SIPTU.

·         Following the letter the Complainant advised the Respondent that he was not a member of SIPTU and awaited further advices.

·         It was at this time that the Complainant was advised by management of the Respondent that he was not to trust the Transferee and that alternative employment would be found for the Respondent employees.

·         It was around this time that the Complainant received phone calls from two representatives of the Transferee in late March and spoke with a Director of the Transferee. The Complainant was told that there was a transfer situation arising. The Complainant advised the caller that he wanted to hear from the Respondent, his employer, directly in order to know exactly where he stood and this in circumstances where the only information coming from the Respondent management was that the Transferee were not to be trusted.

·         Following the contact from the Transferee the Complainant again requested information from the Respondent in relation to his terms and conditions and how the transfer would affect his employment. Notwithstanding the Complainant’s best efforts the information was not forthcoming from the Respondent.

·         At no time was the Complainant advised by the Respondent 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 Respondent.

·         In the absence of any information and consequent upon the communications he was receiving from the Transferee, the Complainant sought the advices of his solicitor who wrote to the Respondent on the 20th March 2018 requesting information regarding the Respondent’s proposals concerning the transfer and the terms and conditions applying to same.

·         On the 28th March 2018, the Complainant received a letter, dated the 27th of March 2018 (some 3 days in advance of the transfer date) from the Respondent. The letter failed to provide any comprehensive information regarding the transfer, or any matter concerning the Complainants other grievances were raised in his letter but instead advised:

“In accordance with the Transfer of Undertakings Regulations your employment will be transferred from the Respondent to the Transferee and this transfer will take effect on the 1st April 2018. As assured please note that your existing terms and conditions of employment and service will automatically transfer to the Transferee with you. A consultation period commenced following our correspondence to you on the 7th March 2018”.

·         It was not until the Complainant was in receipt of the said letter and its contents that he was aware that his employment was to be transferred on the 1st April 2018. The Complainant is clear that there was no consultation period and no member of staff or management of the Respondent consulted him with regard his position vis-à-vis his existing terms and conditions and his new employment.

·         The said letter also contained new information advising the Complainant that failing to transfer to the Transferee “...will be deemed as your resignation from the Respondent as we do not have work available to you”. This was the first time that the Complainant was made aware of the consequences of failing to comply with the transfer. Further, the said letter contradicted the assurances by the Respondent that ‘alternative employment would be found for the Respondent employees not transferring’.

·         On the 28th day of March 2018 the Complainant encountered the SIPTU official who was representing his unionised colleagues in an unscheduled and brief conversation that took place in the environs of a garage forecourt and arising out of which meeting the Complainant was further confused and concerned regarding his future employment. This is the only contact that the Complainant had with the Union official and he confirms that he did not attend any union meetings in relation to the proposed transfer. The Complainant is of the view that the casual and unplanned meeting with the union official did not constitute consultation.

·         On the same day, 28th March 2018 the Complainant’s solicitor emailed the Respondent seeking clarification regarding all matters pertaining to the transfer and in particular requesting that the Respondent reply to his letter of the 20th of March setting out the exact circumstances surrounding the transfer and the implications of same for employees and in particular the Complainant. The letter further states that:

“The only consultation and/or notification our client has received to date in the matter is your letter of the 7th March last advising of the awarding of the client contract to the Transferee in place of the Transferor.”

·         Notwithstanding the contents of the said email the Respondent failed or refused to address any of the issues raised or provide the Complainant with any answers to his queries regarding the transfer or other grievances but instead by way of email on Thursday afternoon the 29th March 2018 advised: “As per your instructions I will remove his details from the list and as indicated to all employees not transferring we will accept this as a resignation”.

·         At no time and in no way could any correspondence from the Complainant or the Complainant’s solicitors have been taken as an instruction to remove him from the list of transferring employees or as an instruction to accept the Complainant’s resignation. The Complainant is of the view that he did not have enough information to make an informed decision about his future.

·         At all times the Complainant and latterly his solicitor attempted to obtain clarification with regards the transfer in the total absence of information and in circumstances where the Complainant was still awaiting clarification on his exact terms and conditions following his return to work after the disciplinary process. It is further submitted by the Complainant that up to this time employees were being actively encouraged not to transfer and not to trust the Transferee.

·         On the 5th April 2018 the Complainant’s solicitor received a letter concerning the Complainant’s employment and which advised the Complainant was being issued with his P45. The Complainant’s P45 has a cessation date of 31st March 2018.

·         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 absence of clarity regarding the Complainants terms and conditions of employment he was not in a position to determine whether or not his conditions of employment were going to be materially altered including his place of employment when at that time he was unaware of his exact   terms and conditions.

·         In other words any reference to ‘existing terms and conditions of employment and service will automatically transfer to the Transferee with you’ were meaningless when the Complainant had no clarity as to his current terms and conditions of employment. It is significant that this was only relayed 4 days prior to the actual transfer, thus further and needlessly pressuring the Complainant to make a decision under pressure of time and ‘in the dark’.

·         In the present matter and for no apparent reason the Complainant’s employer 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 Complainant’s solicitor, under pressure of time and with the Transfer only 2 and a half days away, again wrote seeking information and clarification regarding the Complainants terms and conditions going forward.

·         The Respondent unilaterally and perversely determined that a request for information was in fact a refusal to Transfer and a resignation by the Complainant (It should be borne in mind that this occurred on the eve of and, over a bank holiday weekend, further increasing the pressure).

·         The response of the Respondent can be interpreted at best as the chaotic conclusion to a shambolic handling of the TUPE situation in general and the Complainant’s particular role in that process or at worst as a sinister and cynical response that had serious consequences for this ‘troublesome’ employee.

·         The Respondent 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.

·         In the circumstances and given the history of relations between the Complainant and the Respondent together with the complete failure to engage with the Complainant in any way (indeed the Respondent actively discouraged the Complainant from engaging with the transferee and sowed seeds of doubt when claiming the Transferee was not to be trusted) the Respondent 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 Respondent.

·         The Complainant’s highest level of qualification is the Junior Cert. He started work with the Respondent at 18 and consequently was only skilled to work in one field of employment. The Complainant contends that following the manner in which his employment was terminated, he did not want to continue to work in the industry and, therefore, did not apply for alternative employment with either the Transferor or the Transferee.   Instead he focussed furthering his education and increasing his skills. He had initially hoped to get a place on a horticulture course but eventually ended up starting a computer course at the beginning of September 2018. The Complainant submits that he applied for a number of part-time jobs in the period following the termination of his employment and prior to commencing the training course but that he was unsuccessful.

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:

·         The Complainant voluntarily terminated his employment when he refused to transfer to the incoming employer, and as such no dismissal or redundancy took place.

·         Around the beginning of February, 2018 the Operation Controller of the Respondent company heard a rumour from contacts within the port that the contract for jetty services for the client company at the Dublin Port site were either awarded to or were being awarded to a competitor company. However as there was no official notification at this time the Operation Controller did not act on this information.

·         In or around the 15th February 2018 the Operation Controller contacted the client company locally to determine if there was any truth to the rumour that the contract had been lost. His local contacts at the client company informed him that it did appear to be the case, but that they could not confirm officially.

·         During the course of the next week the Operation Controller was contacted by most of the Respondent’s employees who worked on the client company contract seeking information as the rumour was now out and widely known. The Operation Controller informed staff that he knew very little but that he has heard the rumours and sought clarification from the client, and although not official it was likely this was the case. The Operation Controller weighed up all the likely options for the staff both good and bad, but was clear that he as of yet had not confirmed the situation.

·         It was outlined by the Operation Controller what a Transfer of Undertakings would mean to the employees and the employees were urged to join the Union if they were not already members. Additionally, the Operation Controller answered questions as to what work on different Respondent’s contracts was like. The Operation Controller was asked about redundancy and he informed the employees, that if the contract was lost it would be a transfer of undertakings and they would be protected.

·         On or about the 16th February, 2018 the Operation Controller was given a copy of a letter that was on display in the client company terminal. The letter was from the Transferee and was being handed to employees of Respondent and posted in the canteen. The letter was a confirmation that the Transferee had been awarded the contract and welcoming new employees and assuring them that the Transferee will not alter any existing contracts, and would work towards a seamless handover of staff between the two companies.

·         After this the Operation Controller when asked encouraged staff to contact the union, and if staff did not wish to transfer he would post all vacancies on the notice board in the Jetty Hut, and via email.

·         The Respondent’s Human Resource Manager was in attendance in Dublin Port on the 22nd February, and staff were notified that she was available to meet with staff to discuss any concerns or issues they had in relation to the notice from the Transferee and the transfer.

·         In late February official notification of the transfer was given to the Respondent. Following notification the Operation Controller contacted the appropriate SIPTU office and explained the situation, and advised the SIPTU official that himself and Respondent’s HR Manager would support him and the Union as best they could in representing staff at Dublin Port. Following this meeting in late February there was a severe weather storm which resulted in no staff attending work which caused a delay in informing staff officially.

·         On or about the 7th March 2018 a letter was issued to all Respondent’s staff working within Dublin Port who would be affected by the transfer informing staff that the company had received formal conformation in relation to the loss of the contract for the client company at Dublin Port, stating that in line with TUPE regulations the Respondent wished to know which employees would be represented by SIPTU during the process or if separate arrangements would be required. The Complainant did not respond to this letter.

·         Meetings and communications took place between the Union and the employees where the employees were given all the necessary information as to what would be happening during the transfer.

·         It is the Respondent’s understanding the Complainant attended at least one of these meetings.

·         The Respondent’s HR Manager contacted the Complainant by telephone on the 26th March, 2018 to ascertain if she had permission under the Data Protection Act to transfer his personal details to the Transferee. The Complainant refused, and stated to the HR Manager that she “will have to make me redundant”. It was then explained to the Complainant clearly that if he did not allow for his information to be given to the Transferee no redundancy would be paid and he would be terminating his employment by resignation.

·         This was again confirmed to the Complainant via a letter dated 27th March, 2018, in which it was explained to the Complainant that if he failed to allow his details to be given to the incoming contractor, it will be deemed as his resignation from Respondent company. In addition, the letter stated that a non-response from the Complainant at this stage would amount to acceptance of his permission to transfer.

·         The Complainant’s solicitor responded via e-mail on the 28th March 2018, stating “the company does not have our client’s permission to transfer his personal and employment details to the Transferee or any third party.

·         The Respondent replied to the Complainant’s solicitor on the 29th March, 2018 informing the Complainant’s solicitor that the company have been in consultation with the SIPTU regarding the transfer and the union official has confirmed that he had spoken to the Complainant and the Complainant again stated he did not wish to transfer. Again the letter advised that if the Complainant did not wish to transfer to the Transferee it would be treated as his resignation.

·         On the 29th March 2018 the Complainant sent a text to the HR Manager referencing a letter he received and the phone call of the 26th stating again that he had “no intention of going to the Transferee or resigning”.

·         On the 1st April 2018, about 15 employees transferred to the Transferee from the Respondent’s operation on the Dublin Port site, and the Complainant was taken to have resigned his position.

·         It is clear that the Complainant refused to transfer to the Transferee numerous times, he made this known to the Respondent, when he discussed the matter in detail with the HR Manager on the 26th March 2018, he was well aware of the consequences of the decision, as he was represented by a solicitor, informed by the company, and a Trade Union Official. The Complainant was aware that by refusing the transfer, he would be resigning his position and did just that.

·         It was also made clear to the Complainant that there was not going to be a substantial change to his working conditions to his detriment. In fact, time and time again the Complainant was assured that his terms and conditions would be preserved.

·         The Complainant was not dismissed from his employment in line with the definition as set out in Unfair Dismissals Act.

Evidence of the SIPTU Official

The SIPTU official said that the Complainant only attended one information meeting organised by the union and that was an informal meeting during a break from work. The SIPTU official that he advised the Complainant to stay with his solicitor. The SIPTU official confirmed that he advised all of the union members to get a copy of their Terms and Conditions.

Evidence of the Operations Controller

The Operations Controller said that he heard a rumour sometime in February 2018 that the Respondent had lost the client contract but that there was no formal notification of this. He said that the Respondent employees who worked on the client contract approached him seeking information as to what the loss of contract would mean for them.   He told them that he had not heard anything officially but that he would pass their concerns on to the senior management.

He said that he placed notices up in the canteen about job vacancies with the Respondent. He confirmed that he did not speak to the Complainant about alternative positions with the Respondent and he did not advise him not to transfer employment.  

He said that he received confirmation at the end of February that the transfer was going to happen.

He said that when he told the affected staff, almost all said that they would not be transferring. He sought to reassure them that there was a process and that their terms and conditions would be preserved. He told them that as soon as he had any additional information he would let them know. He advised them to seek the support of their trade union.

Evidence of the HR Manager

The HR Manager said that when she first heard rumours about the loss of the client contract she queried it with her manager who said that it was true but that the Respondent was going to appeal the decision. At the end of February 2018, she was informed that the appeal was unsuccessful and that the transfer would be going ahead. She then made sure that a letter was sent to all staff informing them of the impending transfer and enquiring if they were a member of SIPTU.

The HR Manager said that she sent the Complainant’s solicitor’s very detailed letters of 21st February 2018 and 20th March 2018 directly to their external HR provider for them to issue a response. In relation to the letter of the 21st of February which detailed a number of grievances, and only received a cursory response to the effect that the Complainant should invoke the disciplinary procedure, the HR Manager said that this may have been due to the fact that their grievance procedure did not provide for an employee to be represented by a solicitor.

The HR Manager said that she phoned the Complainant on the 26th March 2018 as he had not responded to her letter to him of 7th March 2018. She contends that, during the course of their phone call, he told her that he was not going anywhere and that they would have to make him redundant. She says that the Complainant raised a number of concerns including concerns about his terms and conditions.

The HR Manger contends that she clarified that if the Complainant did not transfer to the Transferee he would not be in a position to secure his terms and conditions. She submits that he appeared to have an understanding of the situation.

In response to questioning, she agreed that the Complainant was still looking for a copy of his terms and conditions at that stage. She acknowledged that she did not give the Complainant a copy of his contract or his terms and conditions as she thought that he had a copy of his contract and that nothing had changed in his terms and conditions since he had commenced employment with the Respondent. She confirmed that she did not communicate with the Complainant to make him aware of her understanding of his position. She acknowledged that she gave the affected employees who were SIPTU members a copy of their contracts and their terms and conditions at that time.

The HR Manager accepts that the Complainant informed her during the course of their conversation on 26th March 2018 her that he was not a member of SIPTU and that all contact was to be made through his solicitor.

She says that the Complainant mentioned the possibility of a redundancy during the phone call but that she didn’t refer to it in her letter to him of 27th March 2018.

The HR Manager maintains that a text she received from the Complainant on 29th March 2018 in which he said that “he had no intention of going to the Transferee or resigning from the Transferor” led her to believe that he would not be transferring to the Transferee.

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.

Section 6(1) of the Unfair Dismissals Act 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

The Unfair Dismissals Act places on onus on an employer to act reasonably when making a decision whether to terminate the employment of an employee.

Letter of 19th February 2018 from the Complainant’s solicitor re grievances

I note that on 19th February 2018, the Complainant’s solicitor wrote to the Respondent detailing a series of ongoing grievances which the Complainant had with a disciplinary procedure which occurred in late 2017.

I note that the Respondent’s external HR provider responded on behalf of the Respondent and in a very terse letter stated that “to the Company’s knowledge no grievance has been received from the Complainant concerning any of these matters to date”. The letter went on to advise the Complainant to address his concerns through the internal grievance procedure, a copy of which is contained in the Employee Handbook.

I find that the Company acted unreasonably as the Respondent should have been aware that the Complainant was a person of low educational attainment who had not progressed beyond Junior Cert level. The Respondent did not show any appreciation or understanding of the difficulties that the Complainant faced in trying to formulate a coherent grievance notification.   The Complainant had gone to the expense and trouble of engaging a solicitor to write a comprehensive grievance letter on his behalf. I find it unreasonable in the extreme that the Respondent dismissed the Complainant’s solicitor’s communication without any engagement whatsoever.

Letter of 7th March 2018 from the Respondent re the Transfer of Undertakings

I note that the Respondent wrote to the Complainant on 7th March 2018, less than 30 days before the Transfer of Undertakings took. The letter to the Complainant consisted of the following three lines:

“We have finally received formal confirmation from Topaz concerning the award of a shipping contract to Inspection Services Limited.

In line with the provision under TUPE regulations, and you please advise if you will be represented by SIPTU during this process or will we make separate arrangements to consult with you?

Can you please confirm via email to the HR Manger.”

A Transfer of Undertakings is a complex legal mechanism which is not readily understood by persons who lack the appropriate professional knowledge. Despite this, the Respondent made no attempt to explain to the Complainant what was meant by TUPE nor did they provide the information required under the TUPE Regulations, namely, the date of the proposed transfer, the reasons for the proposed transfer and the legal implications of the transfer for the Complainant and a summary of any economic or social implications for him.

I note that when the Complainant did not respond to their letter of 7th March 2018, the Respondent took no action until the HR Manager phoned the Complainant on 26th March 2018.

Letter of 20th March 2018 from the Complainant’s solicitor re the Transfer of Undertakings

I note that the Complainant’s solicitor wrote to the Respondent on 20th March 2018 to complain about the “wholly inadequate” response to their letter of 19th February 2018 concerning the Complainant’s grievances. The correspondence also referenced the Respondent’s letter of 7th March 2018 to the Complainant and asked that all future correspondence be addressed directly to them rather than to the Complainant.

Letter of 27th March 2018 from the Respondent re the Transfer of Undertakings

I note that the Respondent wrote directly to the Complainant on 27th March 2018 (the Tuesday before Easter)   and cc’d his solicitor to say that the Transferee would be taking over the client contract on 1st April 2018.

Despite the sparse content of their letter of 7th March 2018, the Respondent wrote “… as explained in our correspondence to you on 7th March 2018, in accordance with the Transfer of Undertakings Regulations, this means that your employment will be transferred from the Transferor to the Transferee and this transfer will take effect on 1st April 2018. As assured, please note that your existing terms and conditions of employment and service will automatically transfer to the Transferee with you.”

The Respondent continued “a consultation period commenced following our correspondence to you on 7th March.”

Additionally, in their correspondence, the Respondent also indicated that, in order to protect the Complainant’s contract of employment and terms and conditions, they were required to transmit his personal details to the Transferee before 31st March 2018.   The Respondent indicated that, in the absence of any contact from the Complainant or his Solicitor before 29th March 2018, his details would be transferred to the Transferee.  

The Respondent also stated that   a failure to transfer to the Transferee would be deemed to be his resignation from the Transferor.

Letter of 28th March 2018 from the Complainant’s solicitor re the Transfer of Undertakings

The next day, 28th March 2018, the Complainant’s solicitor wrote again to the Respondent to confirm that the Respondent did not have the Complainant’s permission to transmit his personal and employment details to the Transferor or any third party. In their correspondence, the Complainant’s solicitor asked a number of questions of the Respondent regarding how the Complainant’s employment was governed by the Transfer of Undertakings Regulations.  

The Complainant’s solicitor also asked the Respondent to confirm how his “significant grievances would be addressed by the Respondent and whether a full disclosure of same had been made to the new contractor”.

Letter of 29th March 2018 from the Respondent re the Transfer of Undertakings

In response, on 29th March 2018, the Respondent wrote: “Thank you, as per your instruction I will remove his details from the list and as indicated to all employees not transferring, we will accept this as his resignation”.

I find that the Respondent did not address the pressing questions which had been raised by the Complainant’s solicitor in relation to the Transfer of the Undertakings or the ongoing disciplinary issues.

Letter of 29th March 2018 from the Complainant’s solicitor re the Transfer of Undertakings

On the same day, the Complainant’s representative responded to the Respondent to say “Our client has not resigned his position with your company and maintains his employment status with your company until your provide the necessary clarification on the transfer of undertaking failing which our client will be treating any further railroading of his employment rights as tantamount to an unfair dismissal. Our Client has simply confirmed you do not have his permission to transfer his personal details to the alternative company.”

Text of 29th March 2018 from the Complainant to the Respondent’s HR Manager

Also on the same day, the Complainant texted the Respondent’s HR Manager to say “… as discussed in our previous phone call I have no intention of going to the Transferee or resigning from the Transferor and would you please refer all correspondence to my solicitor”.

Letter of 29th March 2018 from the Respondent’s external HR Consultant

Later the same day, the Respondent’s external HR consultant wrote to the Complainant’s representative to say that “as the Complainant is aware through the Respondent’s correspondence to him on the 7th March, the Respondent has been consulting with SIPTU surrounding all matters of the transfer. The Respondent has been informed, as part of the consultation process, by the Union Representative that the Complainant discussed the impending transfer with him yesterday, during which he advised that he did not wish to transfer to the Transferee”.

I find that in her evidence, the HR Manager admitted that the Complainant confirmed to her in a phone call on 26th March 2018 that he was not a member of SIPTU. Furthermore, in his evidence the SIPTU official confirmed that his meeting with the Complainant, to which the Respondent refers, occurred accidently and could not be construed as consultation. In fact, the SIPTU official confirmed that he advised the Complainant to continue with his solicitor.

In light of the evidence of the HR Manager and the SIPTU official, I am at loss to understand why the Respondent continued to act as if the Complainant was represented by SIPTU in relation to the impending Transfer of Undertakings.

It would appear to me that the Respondent availed of the opportunity presented by the transfer of undertakings to dismiss the Complainant without engaging with him and his solicitor in relation to his ongoing grievances and the implications of the Transfer of Undertakings for his future employment.

In Sovereign House Security v. Savage [1989] IRLR 115, the English Court of Appeal observed:

“Generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer the proper conclusion of fact is that the employee has in truth resigned. In my view Tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between employer and employee, or in the circumstances of the employee himself, to entitle the Tribunal of fact to conclude that there was no real resignation despite what may appear at first sight.”

Findings

I find that the Respondent in the herein case acted unreasonably in all of their dealings with Complainant and his solicitor in the period leading up to the termination of his employment – they did not answer the legitimate questions which had been raised concerning the ongoing disciplinary process and the Complainant’s contract and terms and conditions. Furthermore, the Respondent totally disregarded the fact that they had been informed that the Complainant was not a member of SIPTU at any stage and did not take into consideration that he may not have been fully aware of the implications of the TUPE for his ongoing employment.

I find that there was no basis for the Respondent’s conclusion that the Complainant had resigned his employment. I find that the Complainant was effectively dismissed by the Respondent contrary to natural justice and fair procedures.

Having carefully considered all evidence available to me, I find that the Complainant was unfairly dismissed and that the termination of the Complainant’s employment occurred in advance of the Transfer of Undertakings.

Mitigation of Loss

With regard to the mitigation of his loss, I note that the Complainant’s employment with the Respondent terminated on 31st March 2018 and he commenced a training course in early September. He was, therefore, available for work for five months. I note his evidence that he did not apply for any vacancies with the Transferor or the Transferee as he no longer wished to work in the industry in light of how his employment had been terminated. I also note that the Complainant stated at the hearing that during the five month period when he was available for work he applied for 10 to 15 positions without success.

In calculating the level of compensation I took into consideration the efforts of the Complainant to mitigate his losses and I find that his efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

On the termination of his employment, the Complainant was issued with a P45 dated 31st March 2018 which recorded gross pay of €5,657 for the first three months of 2018 which gives a monthly rate of €1,886.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I find that this complaint is well founded and I award the Complainant €7,500 which is approximately 4 months’ wages.

The Complainant submits that he started working for the Respondent as a Jetty Operative in April 2009 on a fixed term contract and that he signed a contract of employment in April 2009. He further submits that he did not sign any further contract after that date.

The Complainant began working for the Respondent on or about the 15th April 2009 as a Casual Jetty Operative working in Dublin Port. The Complainant was issued with his Terms and Conditions of employment along with his employee handbook and various other necessary forms in his “Starter Pack” the Complainant accepted these forms and returned all the completed forms on or about the 13th July 2009, however the Complainant did not return a signed copy of his terms and conditions.

The Respondent submits that the Complainant was supplied with his Terms and Conditions of Employment within two months of the commencement of his employment and that no changes were made to such terms or conditions during the course of the Complainant’s employment.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment …”

I find that the Complainant was supplied with the required statutory statement with two months of the commencement of his employment.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I find that this complaint is not well founded.

The Complainant submits that he was not notified in writing of a change to his terms and conditions.

The Complainant submits that prior to 2017 he had worked an average of 30/35 hours per week.

The Complainant submits that in early 2017 the Respondent indicated that they wanted to put all employees on part-time contracts whereby they would be required to work 25 hours per week or 50 hours per fortnight.

The Complainant asserts that he did not accept the new contract and that he indicated to the Respondent that he wanted to work 30 hours per week.

The Complainant submits that after he returned to work in January 2018 following absence on unpaid leave arising from a disciplinary procedure (which continues to be challenged by the Complainant), his hours were reduced to 15 to 20 hours per week where he had previously been working 30 to 35 hours per week.

·         The Respondent submits that throughout the Complainant’s employment no changes were made to his terms and conditions.

·         The Respondent submits that the Complainant was a casual employee who was taken on to work as and when required by the Respondent.

·         The Respondent submits that the Complainant turned down a 25 hour part-time contract with the Respondent.

Section 5 (1) of the Terms of Employment (Information) Act, 1994 provides:

“… whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3,4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— ( a) 1 month after the change takes effect …”

I find that the Complainant’s was employed on a Jetty Operator casual contract of employment with the Respondent and that his terms and conditions did not change during the course of his employment with the Respondent.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I find that this complaint is not well founded.

The Complainant submits:

·         The contract between the Respondent and the client was up for tender sometime in December 2017. The Respondent lost out in a tender process to the Transferee who was awarded the contract sometime in January 2018.

·         The TUPE came into effect on the 1st April 2018 at which time the works carried out by the Respondent   and its employees were to be taken over by the Transferee who required the employees of the Respondent in order to operate the contract.

·         On the 7th March 2018 the Complainant received a letter from the Respondent enquiring as to his membership or otherwise of SIPTU for the purposes of provisions under the TUPE Regulations and inter alia advised that the Transferee would be taking over from the Respondent. This was the first time that the Complainant was made aware of any matter concerning a transfer of undertakings scenario. Further to this, the said letter indicated that the employer would make arrangements to consult with non-members of SIPTU. The Complainant was not a member of SIPTU.

·         Following the letter the Complainant advised the Respondent that he was not a member of SIPTU and awaited further advices.

·         Further to this, the Respondent waited a further three weeks, (and 4 days out from the transfer) before communicating further in any way with the Complainant and only then advised the actual date of the transfer and referred to a consultation process that never occurred.

·         The Respondent submits:

·         My previous employer (transferor) did not ensure that my terms and conditions transferred.

·         The employer endeavoured to ensure the Complainant’s terms and conditions of employment transferred to the Transferee on the date of transfer. The Complainant did not allow this employment details to be provided to the transferee. The Respondent contacted the Complainant on numerous occasions to attempt to get his permission to transfer his details and ensure his terms and conditions were transferred. The Respondent went as far as to place a positive onus on the Complainant to refuse. On the 27th the Respondent wrote to the Complainant stating “A non-response from you will be deemed as acceptance by us to transfer these details”.

·         The Complainant through his Solicitor on the 28th March 2018 “Confirm[ed] the company does not have our client’s permission to transfer his personal and employment details to the Transferee or any third party” .

·        The Respondent cannot be held liable for failing to ensure that the Complainant’s terms and conditions transferred to the transferee where the Complainant who was professionally advised actively refused to allow those details to be given to the transferee.

·          

·         The previous employer (Transferor) did not inform employee representative of certain details of the transfer.

·        The European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 at Regulation 2 provides the definition of employee representative which does not include solicitor.

·        The Respondent submits, therefore, that there is no obligation to discuss this matter with the Complainant’s solicitor as by definition they are not a representative. The Respondent did consult with a named SIPTU official who was the employees’ chosen representative. The Respondent acknowledges that the Complainant was not a member of the union however, the Respondent believed that the Complainant had attended meetings and had spoken directly to the SIPTU official. In addition, the Complainant did not indicate to the Respondent following the request from the Respondent that he was not being represented by the union.

·         The Respondent dealt with and informed the employees’ representative of the date, reason and implications of the transfer and there for have discharged their obligation under regulation 8 (1) of S.I. 131/2003

·          

·         The previous employer (Transferor) did not consult in relation to the transfer.

·         The obligation to consult with the Complainant only arises in circumstances where either the transferor or the transferee prior to the transfer envisages “measures” in relation to the employees where measures included any action, step or arrangement including the pay arrangements whereby employees were paid earlier in the month.

·         The Respondent envisaged no such “measures” in relation to the employees specifically the Complainant and as such the obligation to consult with the employees under Section 8 (4) of the regulations does not apply.

·         The Previous employer (Transferor) did not advise me in relation to the transfer.

·        This complaint specifically relates to Section 8 (5) and (6) of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003, which provided that where there are no employee representatives the transferor or transferee as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them.

·        It is worth noting at this stage that the Complainant has made a complaint (CA-00020909-009) that the transferor did not consult with the employee representative, and this complaint that the Transferor did not advise. The obligation to advise only arises where there is no employee representative, and as such it is our submission that claims CA -0020909-009 and CA-00020909-13 are mutually exclusive and relief cannot be granted for both claims.

·         The Complainant was issued a letter dated 7 March 2018 in which he was asked to advise the company if he was to be represented by SIPTU during the Transfer process. The Complainant choose not to respond to this letter and as such the Respondent believed that the Complainant was being represented and was receiving all information regarding the transfer through his union representative.

·         The Respondent has submitted the following additional precedent in support of their case: English EAT in Todd v Strain [2011] I.R.L.R.

CA-00020646-006 – My previous employer (Transferor) did not ensure that my terms and conditions transferred to my new employer

Previously in this Decision I have found that the Complainant was unfairly dismissed by the Transferor before the Transfer of Undertakings took place. I find, therefore, that as the Complainant did not transfer to the Transferee this complaint is not well founded.

CA-00020646-007 – I was dismissed by my previous employer (Transferor) on the grounds of the transfer of undertaking

Regulation 5 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides that “if a dismissal of an employee … constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977, relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts”.

As I have already found that the Complainant was unfairly dismissed under the Unfair Dismissals Acts 1977, I find that I do not have jurisdiction to hear this complaint.

CA-00020646-009 – My previous employer (Transferor) did not inform employee representatives of certain details of the transfer

Regulation 8(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that “the transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and (d) any measures envisaged in relation to the employees”.

Regulation 2 defines “employees' representatives” as :

“(a) a trade union, staff association or excepted body with which it has been the practice of the employees' employer to conduct collective bargaining negotiations, or (b) in the absence of such a trade union, staff association or excepted body, a person or persons chosen by such employees (under an arrangement put in place by the employer under Regulation 7(2) or 8(5)) from among their number to represent them in negotiations with the employer”.

Whilst most of the Transferor’s employees who were impacted by the Transfer of Undertakings were represented by SIPTU, the Complainant, as was his right, chose instead to be represented by a solicitor. As the definition of “employees’ representatives” provided in the Regulations does encompass the role of solicitor, I find that this complaint is not well founded.

CA-00020646-011 – My previous employer (Transferor) did not consult in relation to the transfer

Regulation 8(4) requires that “where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement”.

Similarly to my findings above, I find that as the Complainant was represented by a solicitor, and the definition of “employees’ representatives” in the Regulations does not include solicitors, this complaint is not well founded.

CA-00020646-013 – My previous employer (Transferor) did not advise me in relation to the transfer

Regulation 8(5) and (6) provide for situations where there are no employees’ representatives in the undertaking or business of the Transferor. These provisions do not come into play in relation to the herein case as the Transferor’s employees were represented by SIPTU. The relevant regulations do not make provision for employees, such as the Complainant, who chose not to be represented by a trade union but instead opt to be represented by a solicitor. I find, therefore, that this complaint is not well founded.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I find that the following complaints are not well founded: CA-00020646-006,CA-00020646-009, CA-00020646-011 and CA-00020646-013 and that I have not jurisdiction to hear CA-00020646-007.

Transfer of Undertakings, Unfair dismissal