TUD1812

This matter came before the Court by way of an appeal brought by Mr Conor Hourican (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00003791, dated 24 October 2017) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2013 (‘the 2013 Regulations’). The Complainant’s Notice of Appeal was received by the Court on 30 November 2017. The Court heard the appeal on 30 January 2018 and 5 June 2018, in conjunction with the Complainant’s associated appeal under the Organisation of Working Time Act 1997 (‘the 1997 Act’). The Court’s determination in that appeal bears reference number WTC/17/76.

The Complainant was employed by Rocatil Limited T/A Kennedy’s Bar (‘the Respondent’) from 17 February 2016 until his resignation on 11 March 2016. It is accepted by both parties to the within appeal that the Complainant’s employment transferred to the Respondent on the former date pursuant to the operation of the 2013 Regulations from Trinity Taverns Limited (In Receivership) (‘the Transferor’).

The Claims

The Complainant alleges that the Respondent directly breached the following Regulations of SI 131/2003 in his case:

• 
  (i)Regulation 4(2): By virtue of the Respondent’s failure to recognise his position as being that of Assistant Manager, its failure to recognise his service with it as being continuous with his prior service with the Transferor; its unilateral amendment of his responsibilities and working patterns, its alteration of the method by which received his wages and by removing from him the status of key-holder for the premises

  (ii)Regulation 5(3): The Complainant alleges he was left with no option but to resign his employment because of the changes imposed on him contrary to Regulation 4(2);

  (iii)Regulation 7: In so far as the Respondent Transferee failed to preserve the status and functions of employee representatives in place prior to the transfer.

Alleged breaches of Regulation 4(2)

There is a high degree of agreement between the parties’ respective submissions on this matter. It is common case that the Complainant received a fresh contract of employment on 24 February 2016 i.e. following the transfer. It was prepared by Mr Rob Mahon who was present in the business on behalf of the new owners for a period of about four weeks around the date of the transfer from the Transferee to the Respondent to oversee the transition. The new contract states the Complainant’s job title as ‘Bar Man’ and gives the date of commencement as 17 February 2016 i.e. the date of the transfer. Mr Mahon’s evidence was that he had not received any HR information from the Receiver and was unaware of that the Complainant’s job title prior to the transfer was that of Assistant Manager. He also told the Court he had no knowledge or understanding of the Regulations at the time.

The Complainant also submits that he had been a key-holder for the premises prior to the transfer but the locks were changed shortly after the transfer and he was not given a new set of keys. This, he says, further compounded his sense that he had been demoted. The Complainant submits also that he had had a range of other responsibilities (preparing rosters, ordering stock, cashing-up etc) which were taken from him following the transfer. Mr Mahon stated in his evidence that the business and premises (including the stock room) were in a bad state prior to the transfer. The new owners were anxious to build up the business and generally improve the way in which it was run as quickly as possible. This, he told the Court, was the explanation for the changes that were introduced to how things were done. He also stated that it was normal practice for new owners of licenced premises to change the locks when they take possession of the premises in order to protect stock and so on.

A further issue that is relevant under this heading relates to the Complainant’s rostered days off. He submits that he had an established working pattern, agreed and in place from the very commencement of his employment with the Transferee, whereby he had each Thursday and Sunday off, for family reasons. These days coincided with his wife’s days off. However, following the transfer, he was presented with rosters that did not accommodate his established working pattern. This issue, it appears was resolved, after a fashion when the Complainant met with a Mr David L’Estrange (whose firm provided accountancy services to the Respondent) and Mr Brian O’Donoghue, a director of the Respondent, on 7 March 2016. Mr O’Donoghue confirmed at the meeting that the Complainant would be able to avail of Thursdays and Sundays off, at least for the time being.

Discussion and Decision re Alleged Breaches of Regulation 4(2)

It is undoubtedly the case that staff and human resources issues associated with the transfer of ownership of Kennedy’s Pub from the Transferor to the Transferee in February 2016 were handled in a far from ideal manner. The Complainant was entitled by virtue of the Regulations to continuous employment with the Transferee on no less favourable terms and conditions than those he had enjoyed while in the employment of the Transferor. What he in fact was presented with fell far short of his entitlements in this regard. He had a range of responsibilities removed from him; he was given a job title which was inferior to that he previously held; and his long-established working pattern was disrupted. In short, what occurred in his case was a flagrant breach of Regulation 4(2) which cannot be excused by claims that the Receiver did not provide adequate information to the Transferee or that those who were charged by the Transferee with overseeing the transition were unaware of their obligations under the Regulations.

Having regard to the foregoing, therefore, the Court finds this aspect of the Complainant’s case on the appeal to be well-founded and measures the appropriate level of compensation at €15,000.00.

Alleged Breach of Regulation 5(3)

The Complainant alleges that the cumulative effect of the changes to his terms and conditions of employment discussed above combined with the generally robust and shoddy manner in which he was treated following the transfer left him with no option but to resign his employment. He feels, in particular, that he was no longer a trusted keyholder and had lost his standing as Assistant Manager in the business. In support of his perception that the latter was the case, he told the Court of an interaction he had with a member of staff whom he observed was on her mobile phone (apparently viewing a dating App) during working time in the rear of the premises on 9 March 2016. The Complainant asked her to put the phone away and to return to work as the bar was busy. She didn’t do as he had asked her to. As a result, the Complainant felt he longer had any authority with the staff. He was also aware, he said, that customers and other staff members were commenting openly on his apparent demotion from the position of Assistant Manager.

There are a number of inconsistencies between the Complainant’s evidence of what transpired at the meeting of 7 March 2016 and that of Mr L’Estrange. However, it is common case that a number of issues were resolved to the Complainant’s benefit at that meeting at which the Complainant, the late Brian Donoghue and and David L’Estrange were present. For example, the Complainant had mistakenly not been paid for the previous week. Mr Donoghue rectified this and gave the Complainant a cheque to cover his wages at the meeting. The parties also reached agreement in relation to the Complainant’s rostered days off going forward although the new management was not in a position to give him a guarantee that he would have his preferred days off in perpetuity. It is also common case that the issue of the Complainant’s job title and status in the business was not resolved. Mr L’Estrange told the Court that his recollection is that Mr Donoghue assured the Complainant that that issue would be addressed and resolved in the fullness of time. He also said that the meeting ended amicably. On the other hand, Mr Hourican’s evidence was that the atmosphere was hostile and he felt intimidated. He said he was spoken to in a manner in which he had never previously spoken to as an employee.

The effect of all the foregoing, the Complainant, said was very stressful for him with the result that - having consulted with his wife beforehand – he tendered his resignation with immediate effect on 11 March 2016. He informed the Court that he believed it was reasonable for him to do so, in all the circumstances, having regard to the unreasonable manner in which he had been treated by the transferee. The Complainant was of the view that all trust and respect for him had been lost.

Discussion and Decision re Alleged Breaches of Regulation 5(3)

The Court has already determined that there was a serious breach of Regulation 4(2) in the Complainant’s case and has made an award of compensation to him in recognition of that breach.

In arriving at its determination of this second aspect of the Complainant’s case, the Court - having regard to all of the materials circumstances – must decide whether or not the Transferee’s treatment of the Complainant as a whole was so unreasonable as to justify the latter’s resignation. The transfer of ownership and control of the business took place on 17 February 2016. The Complainant resigned his employment on 11 March 2016, a little over three weeks after the transfer occurred. This was a time of enormous change and upheaval for everybody concerned, not least the Complainant. Understandably, the transferee was focused on securing the business and, by its own admission, was not as fully informed about staff matters and the implications of the Regulations as it ought to have been.

It is not disputed that the Complainant articulated his grievances about his working conditions and his perceived demotion to the Transferee including through correspondence from his solicitor. That correspondence apparently provoked the meeting that took place on the evening of 7 March 2016, discussed above. Some if not all of the Complainant’s concerns were addressed and resolved at that meeting. Nevertheless, he chose to resign his employment a short few days later. It appears the incident with the waitress who refused to put away her mobile phone and return to work at the Complainant’s behest was ‘the straw that broke the camel’s back’.

The Court is of the view that the Complainant ought to have been reassured, following the meeting of 7 March 2016, that the Transferee was prepared to make reasonable efforts to address his ongoing concerns over time. It was still very early days following the transfer when he chose, nevertheless, and despite the positive outcomes from that meeting, to resign he employment. In light of the foregoing, the Court is not satisfied that it was reasonable for the Complainant to have done so. Accordingly, the Court determines that Complainant has not established that Regulation 5(3) has been breached in his case. This aspect of his appeal, therefore, fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
25 June 2018______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.