Complainant

Respondent

Anonymised Parties

A Post Room Assistant

A Facilities Company

Representatives

Owen Keany, B.L. instructed by O'Mara Geraghty McCourt

McDowell Purcell

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-00013779-001

06/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00013779-002

06/09/2017

The complainant commenced employment with a predecessor of the respondent on January 10th, 2011 and had moved to the respondent following a transfer of undertakings (TUPE) in April 2015.

Hs gross pay is €2692 monthly.

There are two complaints (and two complainants, although the second, whose case is similar is the subject of a separate Decision/Recommendation).

In the course of the consultation period leading up to the transfer of undertakings the complainant was told that his conditions of employment would remain the same.

However, he says that the respondent is now seeking to implement changes which are in breach of that commitment and the TUPE regulations.

The matters at issue are;

1.      Changes to annual leave. The complainant is being required to allocate time off taken at Christmas from their annual leave.

2.      A change in the sick pay arrangement in that no payment was made in respect of a period in August 2016

3.      Access to a benefit in respect of conveyancing costs; (the previous employer is a law firm).

4.      The proposed general application of the respondent employment policies to the complainant,

5.      An inability to get a statement of affairs in relation to an insurance policy (death in service benefit).

6.      The requirement to wear the respondent’s uniform, and

7.      A change to the bonus system. Conditions have been introduced to the payment.

Overarching these complaints is a general complaint about the tardiness of the respondent‘s dealing with some of the issues, and alleged retaliation for raising them. This complaint falls under the Industrial Relations Act.

In the course of the hearing the complainant welcomed some reassurances given by the respondent and said that the complaint under the Industrial Relations Act represented a good way forward for dealing with outstanding issues between the parties.

The respondent notes that the complaints were raised some four and a half years after the transfer but says that there has been no breach of the complainant’s conditions of employment in the context of a TUPE transfer.

Some of the changes were operational or administrative changes and were notified to the transferring employees before the transfer. The respondent says it is entitled to seek to make changes in its employees’ terms of employment following the transfer, but in any event, has not done so. The respondent met its obligations under the Regulations to accept fully the ‘transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer’.

In respect of the items above, and following that numbering the respondent says;

1.      Changes to annual leave (at Christmas).

The change referred to here was also provided for in the transferor and only arises when early notice has been given of closure arrangements.

2.      Change in the sick pay arrangement.

There has been no change. The transferee sick pay scheme had a similar provision to that  being objected to.

3.      Access to a benefit in respect of conveyancing costs; (the previous employer is a law firm).

This issue has not arisen as the complainant has not sought to purchase a house but the respondent is willing to consider a similar scheme.

4.      The proposed general application of the respondent employment policies to the complainant.

         The respondent says that these must apply to all its employees.

5.      An inability to get a statement of affairs in relation to an insurance policy (death in service benefit).

This is a purely administrative delay. There has been no change to the employee’s benefits

6.      The requirement to wear the respondent’s uniform.

       This is only a company shirt (which the complainant was wearing at the hearing).

7.      A change to the bonus system.

The respondent says that there has been no material change to the bonus system and that its new arrangement is advantageous to the complainant. There is no change in the criteria for payment of the bonus.

The respondent says that a lot of time has been spent on processing these grievances.

I find that no issue arises under the Transfer of Undertakings Regulations. The complainant transferred on the basis of his then existing conditions.

I make my recommendations below under the Industrial Relations Act.

The respondent has sought to introduce a number of relatively minor changes, most of which, with the exception of the uniform have not in fact been implemented.

When exposed to the opportunity presented by the hearing to explore the actual substance of the complaints, taken either separately or together they are relatively minor.

It was clear that delay in providing information and generally expediting the grievances raised played a part in this and the respondent could have, and it will be my recommendation that it should do more to bring matters to an early conclusion.

However, the complainant (in fact both this and the related complainant) have a part to play in this.

They cannot indefinitely obstruct the respondent’s business with petty complaints beyond a point where reasonable efforts have been made to address and resolve their grievances.

The complainants are required to cooperate with reasonable change; they may not indefinitely use the shield of the transfer to insulate themselves from such reasonable change. Failure to do so may expose them to disciplinary action in the normal way.

At a certain point the respondent will feel justified in closing the book on the issues, but only after they have been properly and fully ventilated.

Of the issues above, it seems that there is not much between the parties that could not be clarified and brought to a conclusion very quickly.

Following the enumeration above I find in respect of items 1, 2 and 7 that there has been no actual change.

Since the hearing the respondent submitted further information to the effect that, having established the relevant facts it would honour the previously existing conveyancing arrangement, and this therefore disposes of item 3.

In relation to item 4, the complainant is obliged to cooperate with the respondent’s general employment policies, and this includes the wearing of the uniform at point 6.

Regarding item 5, the respondent should take whatever steps are necessary to give the complainant an up to date statement of affairs in relation to the insurance policy in question.

In my recommendation below, and subject to the right to appeal I set a timeline of four weeks from the date of this decision for the closing of all these issues by the parties; this requires the respondent to provide the information required at point 5 above and the complainant to cease any continuing complaint regarding the other issues and conclude the matter.

I do not uphold complaint CA-00013779-001 and it is dismissed.

I partially uphold CA-00013779-002 as outlined above. I recommend that both parties co-operate in closing off all outstanding issues within four weeks of the date of this decision as outlined in my findings.

TUPE, Industrial Relations Issues