Complainant

Respondent

Anonymised Parties

A Worker

Hospitality provider

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00006872-001

08/09/2016

The claimant was employed as Bar Manager at the respondent’s premises from 2008 – over the years there were a number of changes of management /ownership of the premises – the most recent transfer took place on the 27thMay 2016.Employees were advised in writing at the time that their terms and conditions of employment would be unaffected and the respondent would take over the terms and conditions of employment.

On the second week following the transfer , the claimants wages were reduced by €50 per week – whereupon the matter was referred to the union and a   chronology of the representations made on behalf of the claimant was set out.It was submitted that while in the employment of the transferor , the claimant had reached agreement with his employer on the payment of an additional €50 per week in recognition of outgoings on travel related to his job.The claimant was required to staple receipts with his time sheets - this had been agreed with the transferor .The claimant continued to submit receipts following the transfer of the business but the agreement with the transferor was not honoured by the transferee .The claimant was seeking retrospective payment of the €50 per week to the date it ceased on the 9th.June 2016 and sought to have the payment continue into the future.

The respondent asserted that very little information about the terms and conditions of employment of the employees had been received from the transferor .The respondent discovered following the first pay run post transfer that the claimant’s take home pay was €575 per week and not €625 that had been paid in the first pay run.It was established that the transferor was paying €728.57 per week with the correct deductions being made from same but the amount was being topped up by €50 for expenses post deductions yielding €625 net pay per week.

It was submitted that the claimant was an employee and that the respondent was bound by the laws of the land in relation to taxation of the claimant’s remuneration.It was submitted that remuneration does not include expenses incurred in the carrying out of duties and that it was neither feasible nor realistic for the claimant to incur expenses in the carrying out of his duties as Bar Manager.It was submitted that the claimant has not submitted proof of any expense incurred .It was advanced that the respondent was agreeable to discharge all preapproved and vouched expenses .The respondent outlined in detail Revenue’s requirements with respect to expense allowances and the taxation of same – it was submitted that a pre transfer payslip for the claimant illustrated that the €50 expense payment was not being taxed and that there was no explanation provided as to what the expenses related to.A number of authorities were invoked in support of the respondent’s contention that their cessation of what was effectively an illegal payment by virtue of its non compliance with Revenue regulations was not   in Breach of TUPE.It was submitted that it was held in ECJ Case C-425/02 Johanna Maria Boor, nee Delahaye v Ministre de la Fonction publique et de la Reforme administrative that the claim by the complainant for the continued observance of the working conditions that existed at the date of the transfer amounted to “an absolute or sacrosanct principle “ was not correct.In the English case of Interfoto pictures Library Ltd.v.Stilleto Visual Programmes Ltd. it was held that the disputed condition was an unreasonable and extortionate clause which had not been brought to the attention of the defendants and were therefore not bound by it.It was submitted that the claimant’s payment was not properly brought to the attention of the respondent who should have been advised that the sum amounted to a payment for expenses rather than remuneration.

It was submitted that the payment for unvouched and unverified expenses that is not subject to tax cannot by its very nature give rise to any legal right on behalf of the employee or obligation on the part of the respondent.