ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00009089
Parties:
| Complainant | Respondent |
Anonymised Parties | An assistant supervisor | A cleaning contractor |
Representatives | None | None |
Complaints:
Act | Complaint 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-00011097-001 | 02/05/2017 |
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-00011097-002 | 02/05/2017 |
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-00011097-003 | 02/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00011097-004 | 02/05/2017 |
Date of Adjudication Hearing: 15/12/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 2nd May 2017, the complainant submitted complaints to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 15th December 2017.
It appears from the complaint form that this was a complaint by the complainant and four named colleagues. The complaints only registered against the complainant. In any event, none of the four other colleagues attended the adjudication, so this report only addresses the complainant.
At the time the adjudication was scheduled to commence, there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the time, date and venue of the adjudication and then proceeded with the hearing in its absence.
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant is an assistant supervisor for a cleaning contractor on the site of a tertiary hospital. The contract was subject to a transfer of undertaking on the 12th December 2016. |
Summary of Complainant’s Case:
The complainant started working at the client hospital on the 19th November 2010. He started with a named entity, the later transferor. The complainant’s role is that of assistant supervisor, although he works as a porter during the day and steps in as supervisor in the evening. His role is to collect linen and scrubs from the hospital for cleaning. They deliver in the morning and collect items in the evening to send to a cleaning facility. During 2016, a manager from the transferee was on site and said that they would be well-treated on transfer. They met respondent representatives in October 2016 in the staff canteen. It was a five-minute meeting and they said everything would stay the same. The complainant and his colleagues met them again in December 2016, when the transfer took place. The transferor informed the complainant and his colleagues that their bonus balance payments and annual leave balance would transfer over. This was set out in their December 2016 letter. The transferee, however, later stated that the complainant owed days. He was owed a balance of 4.1 days and this was paid recently. The transferee refused to acknowledge the existing bonus system, which based on 96% attendance. The transferee now wished to recalibrate the complainant’s years so that he would return to year 1 when he should be on year 3. He was entitled to a bonus of €244.16 while they say he should be paid a bonus of €147.08. The bonuses are paid per quarter, with an annual bonus. The transferee was also not paying public holiday payments and Saturday payments. He had not actually worked any public holidays, but worked 24 Saturdays, where he should have been paid an extra €4 per day. The complainant outlined that they had always received a rota for the full year, but now only received a rota every four weeks. This meant that staff could not plan holidays. The transferor handbook states that they should know their timetable every three months. The transferee initially held back on pay slips and did not explain why. The complainant thought that this was because the staff were arguing with them, and could not argue with them without pay slips. The transferee delayed providing the complainant and his colleagues with uniforms and they had to use their own safety shoes. They later provided staff with €40 to buy safety shoes. They were not provided for safety gloves and this was required as they handled garments that could contained sharps. They were not provided with winter wear for outside work. The transferor always provided these items and while not directly in their terms and conditions, they should have been provided. They also raised this as a health and safety issue, and the transferee promised to order the gloves and the winter wear and this never happened. The transferee changed the complainant’s job title from linen porters to managed linen service representative. They later reverted to calling him and his colleagues “porters”. They did not want to agree to the change in title as there may be repercussions. In a recent management vacancy, the respondent referred to the role being as manager of MLS (managed linen service) and not as the manager of porters. The complainant said that they had been forced to use PDAs to manage stock. This was an extra duty and they had offered to negotiate the role. In January 2017, they agreed to do a two-week test run and the respondent said that they would review pay after that. After they refused a pay rise, they stopped using the PDAs and they threatened with a disciplinary process and dismissal, so they started using the PDAs again. The complainant outlined that they received double pay on bank holidays but were paid a flat rate in the transferee. The complainant worked Christmas 2016 and was due two days of pay. This is an amount of €141. The complainant and his colleagues had an agreement with the transferor to deliver items between 8am to 12 noon. They completed a stock take at 7am and planned deliveries. The transferee wanted deliveries to start at 7am. In the first few months, the driver would arrive at 10am, but the dirty linen was not ready. There was an issue with a machine the transferee wanted to use, but this was too slow. As Assistant Supervisor, the complainant received two extra payments of €637 per year, i.e. €1,274 per year. He filled in when the supervisor went home. The transferee did not want to make this extra payment. They eventually made the first payment of €637 in July and the second December payment of €637. The complainant said he agreed hours with the transferee. There was no issue following the transfer but when he complained about other issues, they subjected him to a disciplinary meeting. He was suspended twice relating to his working hours and his responsibility for the work phone for an extra hour. They tried to scare him into accepting changed hours. He was now able to work the amended hours for family commitments. The complainant and his colleagues had still not signed any terms and conditions with the transferee and this is still up in the air. |
Summary of Respondent’s Case:
There was no appearance by or on behalf of the respondent and it did not make submissions in advance of the adjudication. |
Findings and Conclusions:
These complaints arise from a transfer of undertaking effected on the 12th December 2016. I find that the transfer in question comes within the ambit of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations. CA-00011097-001 This is a complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, in particular the failure of the transferee to consult with the complainant and others. He refers to short meetings in October and December with representatives of the transferee. This left questions outstanding and the consultation was not meaningful. It follows that the respondent did not comply with its obligation under Regulation 8. I award the complainant €500 redress in respect of this breach. CA-00011097-002 This is a complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations regarding the failure to ensure that the terms and conditions of employment transferred over. This complaint is well founded as there was delay in paying annual leave due and in making bonus payments. There was delay in providing health and safety equipment and only some of this was provided. I award the complainant redress of €1,000 in this regard. CA-00011097-003 This is a complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations regarding the failure to observe the terms and conditions that transferred. This includes the payment of public holidays and Saturdays. The complainant pointed to a shortfall arising from this breach. Given these issues, I deem that the complaint is well founded and award redress of €750. CA-00011097-004 This is a complaint made pursuant to the Terms of Employment (Information) Act. I deem this complaint not well founded as a statement was provided to the complainant. The issues raised by the complainant are addressed in the complaints made pursuant to the TUPE Regulations. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00011097-001 I find that this complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations is well founded and I award redress of €500. CA-00011097-002 I find that this complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations is well founded and I award redress of €1,000. CA-00011097-003 I find that this complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations is well founded and I award redress of €750. CA-00011097-004 I find that this complaint made pursuant to the Terms of Employment (Information) Act is not well founded. |
Dated: 22nd June, 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
European Communities (Protection of Employees on Transfer of Undertakings) Regulations / Regulations 4 and 8 Terms of Employment (Information) Act |