UDD185

The Complainant was dismissed on 31 January 2016. The Complaint was filed with the Workplace Relations Commission on 3 February 2016. The Adjudication Officer issued his decision on 25 January 2017. The Complainant filed her appeal with the Labour Court on 15 February 2017. The case came on for hearing before the Court on 10 November 2017.

Background

The Complainant commenced employment with the Respondent a contract services company on 18 Janauary 2011. She was initially employed as a concierge, working in an apartment block in Smithfield Dublin. The Complainant had an employment background in administration roles and consequently was subsequently assigned work in the Company’s head office in Dublin 18. However the Complainant did not take to this role and she was, at her request, returned to the concierge role in Smithfield.

Following a review of the concierge role in 2015 the Company decided that the role had some of the characteristics in line with new security licencing requirements. The decision was taken that concierge staff should be trained to enable them to obtain security licences in accordance with the requirements of the Private Security Authority.

Synergy Security Ltd, a sister company of Rapier Contract Services Limited, had responsibility for providing security services in relation to the Smithfield complex. Accordingly, a decision was taken to transfer the concierge business of Rapier Contract Services Limited to Synergy Security Limited. All affected staff were notified that their employment would transfer to that company under the European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003.

This transfer was originally scheduled to take place on 1 January 2016. However this date was, for various reasons, postponed to 1 February 2016.

Complaint of Unfair Dismissal

The Complainant acknowledges that she told the Respondent that she would refuse to transfer to Synergy Security Ltd. In her submission to the Court she states

• “On 15 November 2015 I received a letter from Mr John Russell informing me that my employment with the company will cease on 1^stDecember 2015. I will be subject to TUPE transfer and the position I held will be taken by Security (the security company name was not mentioned) and I will receive additional training. The transfer offer to a security company was not made to all my colleagues (eg Kristina Holikova was offered a positon as a cleaner but her employment with Rapier Contract Services ended as she informed Mr John Russell that she is pregnant)

  I informed the company I will not accept the transfer because it was in my disadvantage to work as a security, especially for a sister company of Rapier Contract Services as was the one I was supposed to be transferred , Synergy Security - where I could be transferred immediately to any other security position and because in my opinion a TUPE transfer couldn’t be made as the occupation was changing from receptionist to security but I didn’t receive an answer.

  The termination of the contract was postponed till the end of December but I was not informed about it in advance. At the end of December the transfer was postponed again and I was not informed in advance this time as well. On the 4^thof January 2016 I received another letter from Mr John Russell informing me the contract will end on 31^stJanuary 2016 and the company considers me as having resigned. The transfer was postponed again. I was not informed about it this time either but I was not put on the roster as the other colleagues (except one who refused the transfer as well and so my last day of work was 31^stJanuary 2016 and the tranaser took place on 12^thFebruary 2016.”

It submits that the Complainant resigned from her position with Rapier Contract Services Limited and that no dismissal took place.

Issues for the Court

The Court must decide whether the Complainant resigned or was dismissed from her employment with Rapier Contract Services Ltd. If it decides she resigned then that is the end of the matter. However if it decides that she was dismissed then the dismissal is, as a matter of law, deemed to be unfair unless there were substantial grounds justifying the dismissal.

Section 6 of the Unfair Dismissals Act 1977 states in relevant part

6.— (1) Subject to the provisions of this section, 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.

Was the Complainant dismissed or did she resign?

It is common case that the Complainant told the Respondent that she would not transfer to the new employer. She sets out her reason for doing so in the following terms

“I will not accept the transfer because it was in my disadvantage”.

She describes that disadvantage in the following terms: -

• “I could be transferred immediately to any other security position and because in my opinion a TUPE transfer couldn’t be made as the occupation was changing from receptionist to security”

The Respondent set out its position on the proposed transfer to the Complainant on 4 January 2016 in the following terms

• I refer to various communications over the last few months and am disappointed that you have chosen not to be part of the TUPE transfer arrangements we have made available to you, particularly as it was you that requested we arrange for you and your fellow workers obtain Security Licences and increased your rates of pay after you pointed out that some of your functions could be deemed to be those of security duties.

  I would confirm that as you have clearly pointed out you will not transfer your employment will cease with Rapier Contract Services Ltd on Sunday 31^stJanuary 2016 when we will consider you as having resigned from the company (Symantec Ltd v Lyons).

  We wish you well in the future.

The relevant part of that decision states

• With great respect to the arguments advanced on behalf of the Defendants/Respondents the court disagrees profoundly with their view of the implications for Irish labour law of the ECJ's judgments in Katsikas and Merckx respectively. The court has no doubt but that the correct view of the matter is that which has been articulated on behalf of the Plaintiff/Appellant. As the Defendants/Respondents have rightly pointed out Irish implementing legislation does not make any particular provision as to what will occur if employees decide not to transfer. However, contrary to their belief, that fact operates against them. It does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-�-vis the transferor. It cannot do so because the fact that an employee objects to the transfer does not of itself have the effect of negativing the transfer. It is just that an employee is not obliged to continue his employment relationship with the transferee. However, the transfer still goes ahead unless a member state expressly provides for the contrary in its implementing legislation. That this is so is clear from the judgment of the ECJ in Katsikas. That Court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the Court said “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ.”

  In my view nothing could be clearer. If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy it could have enacted legislation to that effect. It has not done so. This court is completely satisfied that by virtue of regulation 4 (1) it is not possible for the Defendants/Respondents in this case to make a redundancy claim against the Plaintiff/Appellant. In all the circumstances the court is satisfied to allow the appeals in both cases.

While the decision in Symantec refers to a claim under the Redundancy Payments Act, the Court is of the view that by parity of reasoning the same principle applies to a claim for unfair dismissal under the Unfair Dismissals Act. As no employment relationship between the transferor and the transferee survives a transfer under the TUPE regulations no claim of unfair dismissal against the transferor can be sustained by a worker who refuses to accept the transfer under the Regulations. In essence it would appear the upshot of the decision in Symantec Ltd is that such a worker terminates their own employment in such circumstances.

In this case the Complainant exercised her right to refuse the transfer to the new employer. She says she did so because her terms and conditions of employment in the new company were to her disadvantage. However, having heard the parties on this point, the Court finds that the Complainant’s terms and conditions of employment would, as a matter of law and of fact, have been unaffected by the transfer and that her assertions to the contrary are misconceived.

Accordingly, the Court finds that the Complainant’s employment was the subject of a transfer of undertakings and that she exercised her right not to transfer. The Court further finds that the Respondent’s letter of 4 January 2016 is no more than an advisory note setting out the effect her decision not to transfer would have on her employment with Rapier and does not amount to a letter of dismissal. Accordingly the Court finds that the Respondent did not dismiss the Complainant but rather that she terminated her own employment when she rejected the transfer under TUPE regulations.

In such circumstances the Court finds that as no dismissal took place no claim for unfair dismissal arises.

Determination

The complaint of unfair dismissal is not well founded. The appeal is not allowed. The decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
16 January 2018Deputy Chairman



NOTE

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