TED1820

This is an appeal on behalf of G4S Secure Solutions (Ire) Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00008111, dated 4 April 2018) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Notice of Appeal was received by the Court on 14 May 2018. The Court heard the appeal in Dublin on 26 June 2018. In the course of the hearing, the Court invited both Parties to make additional written submissions in relation to a number of relevant legal and factual issues. Mr Krysztof Stanek’s (‘the Complainant’) Solicitor, Mr Krystian Boino, furnished his additional written submissions on 9 July 2018. No additional submissions were forthcoming from the Respondent.

The Complainant has complained of two matters under the Act: (a) he did not receive a statement of terms and conditions from the Respondent when his employment transferred from his previous employer to the Respondent in October 2011, pursuant to the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003; (b) he did not receive an amended statement from the Respondent detailing revised procedures for claiming so-called ‘make-up time’ payments.

The Complainants claims were received by the Workplace Relations Commission on 10 April 2017. A hearing before an Adjudication Officer took place on 9 August 2017. There was no attendance on behalf of the Respondent at that hearing. The Adjudication Officer upheld both complaints and awarded compensation of €1,677.00 in respect of each of the two complaints.

The Respondent’s Submission

(a) The Respondent submits that it carried out due diligence in relation to the Complainant’s terms and conditions of employment prior to the transfer of undertakings that took place in October 2011. It further submits that the transfer did not occasion any changes to the Complainant’s terms and conditions of employment.

(b) The Respondent submits that the Complainant was very familiar with the correct procedure it had in place to facilitate claims from employees for ‘make-up time’ payments as he had used this procedure on some 38 occasions between 2012-15. The company exhibited documentary evidence to confirm the Complainant’s previous usage of the system.

Discussion and Decision

(a) It is abundantly clear that the Respondent did not issue the Complainant a written statement pursuant to the Act when his employment transferred to it in October 2011, notwithstanding the very important change that had taken place as a consequence of the transfer i.e. the identity of his employer had changed. Accordingly, the Court upholds the decision of the Adjudication Officer and affirms the award made by him in respect of this complaint.

(b) The records appended to the Respondent’s written submission to the Court confirms that the Complainant was fully aware of the Respondent’s ‘make-up time’ claims procedure and had make extensive use of it. There is no evidence that this procedure changed materially or at all and it had not been established to the Court’s satisfaction that there was, therefore, an obligation on the Respondent, pursuant to the Act, to issue the Complainant with a revised statement of terms and conditions.

The Court finds this claim is not well-founded and sets aside the Adjudication Officer’s decision.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
18 December 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.