Complainant

Respondent

Anonymised Parties

A Worker

A CE Scheme

Representatives

Kevin Mckinney SIPTU

Kathleen McCague

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-00008630-001

07/12/2016

The claimant commenced employment on a CE Scheme in a hospital in Nov. 2013 and was requested to act up in the Supervisor’s position when he retired in December 2015 , pending the permanent filling of the post. The claimant was deemed suitable to act up by the project officer from the Dept. of Social Protection in January 2016 – the claimant was issued with a fixed term contract for Acting Supervisor and the contract was extended on numerous occasions. On the 15th.Aug. a hospital manager advised that the current CES project would end and 2 schemes – the hospital scheme and the respondent’s scheme would amalgamate and form one project. The manager confirmed that the 2 Supervisor posts would continue and there would be no major changes. On the 6th.November the claimant was advised by the respondent that the Management Committee had decided that the new project would have 1 Supervisor and an Asst. Supervisor and that she could apply for the post of Asst. Supervisor. The union set out a chronological account of the ensuing exchanges between the union and the respondent – no agreement could be reached on the union’s request that the claimant continue in the post pending the filling of it on a permanent basis. The post was advertised and filled on the 23rd.Jan. 2015.It was submitted that the respondent was in breach of Regulation 4 by failing to honour the Acting Supervisor’s contract – it was contended that arising from same the claimant had incurred a loss of €4,720.21 from the 7th.Nov. 2016- 23rd.Jan.2017.It was submitted that the respondent was also in breach of Regulation 8 by failing to meet the consultative provisions   within the 30 day time limit.

The respondent submitted that they had been a sponsoring body for Community Employment Projects over 20 years and the current project was made up of 14 sub sponsoring groups. CES Schemes are government sponsored training programmes and each project consists of a 52 week programme. On completion of the programme and where approval has been authorised by the DSP a participant may be re-engaged to either a subsequent project that has been allocated to the participant’s current sponsoring body or indeed to a project of another sponsoring body. It was submitted that the claimant was engaged as a participant on the Hospital Scheme which closed on the 4th.Nov. 2016 whereby her contract was terminated. The hospital also ceased to be a sponsoring body on that date. The claimant was reengaged by the respondent on Monday the 7th.Nov. It was submitted that each project is a stand alone project and participants do not transfer but are reengaged . It was advanced that the respondent was “ specifically excluded from the Protection of Employees Fixed Term Work Act of 2003”.

The question to be determined is whether or not the taking over of the Scheme constituted a transfer of undertaking under TUPE. The DSP was represented at the hearing but did not offer any view on the matter. The union   was adamant that the claimant had the protection of TUPE and that the claimant was entitled to argue that she retain her rights and obligations post transfer .The respondent asserted that a reengagement rather than a transfer took place.

I have reviewed the entirety of the evidence presented and am satisfied that the claimant is entitled to rely on TUPE.This is consistent with the findings of the ECJ in Redmond Stichting v- Bartol [1992] where it was determined that” there is a transfer where a public body terminates a subsidy paid to one legal entity as a result of which the activities of that entity are terminated and transferred to another legal entity with similar aims “. Accordingly I uphold the complaint of a breach of Regulation 4 and require the respondent to pay the claimant €4,720.21 compensation within 4 weeks of the date of this decision.

On the basis of the evidence presented I am satisfied that the respondent did not meet their obligations with respect to the consultative provisions of Regulation 8(2) and accordingly I declare the complaint to be well founded.I require the respondent to pay the claimant €800 compensation within 4 weeks of the date of this decision.