TUD1819

Parties’ Submissions

The Complainant was in the service of the Bank of Ireland (‘the Respondent’) as a print and mail operations production assistant from 2009 until his employment was terminated on 29 August 2013. That termination ultimately gave rise to proceedings before the Employment Appeals Tribunal which proceedings were compromised on 22 December 2014. With effect from 13 January 2014, the Complainant obtained employment with Pomeroy IT Solutions UK Limited (‘Pomeroy’) which at the time had contracted with IBM to supply services to the Respondent. The Complainant was deployed by Pomeroy to work on-site at the Respondent’s Head Office on Mespil Road, Dublin. It is the Respondent’s submission that the Complainant was on its premises on 31 January 2014 without its consent or permission and was therefore asked to leave and did so. The Complainant submits that he was dismissed from his employment by Pomeroy on 19 March 2014 as a consequence of what transpired on 31 January 2014. He further submits that this decision was rescinded following an intervention by an official of the IBOA on his behalf.

The Complainant’s employment with Pomeroy ultimately ceased by reason of a purported redundancy on 31 May 2016. A letter from Pomeroy (dated 13 June 2017) exhibited by Mr McNamee BL states, inter alia:

• “Pomeroy IT Solutions UK Limited re-contracted Mr Quinless on the 1^stof April, 2014 by way of a Purchase Order provided by IBM, with the understanding that this was at the request of BOI. It is the understanding of Pomeroy IT Solutions UK Ltd that the issue between Mr Quinless and Bank of Ireland and regarding access to its premises has been resolved.

  This was not in fact the case. The Bank of Ireland continued to object to Mr Quinless’ presence on its premises. The effect of this ban was that Pomeroy IT Solutiions UK Ltd could not carry out its contractual duties for Bank of Ireland. Bank of Ireland was responsible for not renewing the said Purchase Order. Pomeroy IT Solutions UK Ltd was left with no alternative but to make Mr Quinless redundant.”

At this point it is useful to reproduce the following paragraph from the Complainant’s written submission as it encapsulates what appears to be the nub of his claim:

• “The Respondent procures services from Pomeroy and other providers by means of a Purchase Order whereby the Respondent undertakes to fund specific work to be carried out by a specific individual. A specific Purchase Order applied to the work which the Claimant was carrying out for the Respondent which was cancelled by the Respondent in 2016 before the Purchase Order was due to expire, the Respondent advised Pomeroy that the Purchase Order in respect of the services provided by the Claimant would not be renewed. The Claimant was unaware that the Respondent had set up a Purchase Order to enable Pomeroy to re-employ the Claimant. The Respondent was in effect Claimant’s “secret” employer, yet as stated in paragraph 5 above, the Claimant was precluded from working on the Respondent’s account. The Claimant contends that the failure to renew the said purchase order constituted a partial transfer of undertaking insofar as the work formerly carried out for the Respondent by the Claimant (as an employee of Pomeroy Ltd [sic]) was transferred to another entity, the identity of which is unknown to the Claimant.”

• “The Bank did not have any direct relationship with Pomeroy or retain its services, however, at the time the Bank was in receipt of information technology consultancy and services from IBM. It is understood that IBM was, in turn, party to a third-party information technology services contract from a company called Pomeroy IT Solutions UK Limited (‘Pomeroy’).

  The Bank is a stranger to the relationship between IBM and Pomeroy and has no knowledge of the precise legal character of the arrangements that existed between them. Furthermore, the Bank was at all times removed from and unaware of the relationship that existed between the Appellant and Pomeroy.”

Mr Lyons BL asked the Court to find that the within appeal is bound to fail and cannot succeed having regard to the case the Complainant is seeking to advance. In Mr Lyons BL’s submission, the Complainant has at no stage in the course of the within proceedings actually particularised his claim in any detail. In any event, the Respondent submits no transfer of undertaking as between Pomeroy and Bank of Ireland or as between Bank of Ireland had been established on the evidence adduced by or on behalf of the Complainant.

Discussion and Decision

Having very carefully considered the Parties’ submissions and the evidence adduced both from the Complainant and Ms Lloyd, the Court is of the view that the Complainant has not established, on the balance of probabilities, that a transfer of undertakings that could have impacted on his employment occurred.

The Complainant’s claim was received by the Workplace Relations Commission on 4 November 2016. He was employed and paid by Pomeroy until 31 May 2016, on which date he received and accepted a redundancy payment from Pomeroy. Nevertheless, he submits that he now believes that the Respondent was in reality his ‘secret employer’ for the duration of his engagement with Pomeroy. Despite the Court’s best endeavours to elicit from the Complainant and his representative, Mr McNamee BL, what case they were seeking to advance - i.e. who was the alleged transferor and transferee; when did the alleged transfer occur? – the Court was not furnished with any evidence of any transfer within the meaning of Regulations.

In the circumstances, therefore, the Court finds that the appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
21 December 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.