Complainant

Respondent

Anonymised Parties

A head chef

A facilities management company

Representatives

Barron Morris, Solicitors

Purdy Fitzgerald Solicitors

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-00012971-001

04/08/2017

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-00012971-002

04/08/2017

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-00012971-004

04/08/2017

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-00012971-007

04/08/2017

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-00012971-008

04/08/2017

In late 2016, the directors of the nursing home operated by the Transferor decided to contract out the work of the catering, laundry and cleaning staff. A facilities company was selected and on February 6th 2017, 16 people, including the complainant, transferred to the facilities company, in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003).

The complainant had been employed with the nursing home from October 12th 2016 as a head chef. He was employed on a fixed-term contract for four months with an end date of February 11th 2017. His employment was terminated by the Transferee on March 2nd 2017.   Before the termination of his employment, he earned €700 per week.

Below is a summary of the complaints against the Transferee as they are set out on the complaint form.

Reference number

Outline of Complaint

CA-0012971-001

My new employer sought to impose on me new terms and conditions of employment. I was subsequently dismissed without any fair procedures.

CA-0012971-002

Attempts were made by my new employer to change my terms and conditions and there was actual change.

CA-0012971-004

No attempt was made by the Transferee to comply with Regulation 8(5) on the selection of representatives.

CA-0012971-007

No consultation whatever was held by my new employer.

CA-0012971-008

No information or inadequate information was provided to me by my new employer.

Having commenced in October 2016 on a fixed-term contract for four months, the complainant said that he expected that he would be made permanent. He based his expectation on the fact that the permanent head chef was on sick leave and there was no indication of when he would return.

Transfer of the Undertaking

On January 6th 2017, along with the other employees in the catering, laundry and cleaning departments of the nursing home, the complainant attended a meeting at which he was informed of the decision of the directors to contract out the non-clinical work. The complainant said that at the meeting, the staff expressed concern about their jobs, as he did himself, asking, “is my job safe?” He said that they were informed that their jobs were safe and that their terms and conditions would not change. He said also that the Nursing Home Manager and the HR Manager couldn’t provide answers to all the questions that the staff asked, although he did not give specific examples of questions that were not answered. In evidence, the complainant said that, as a result of the transfer, there was no change to any of his benefits.

A second meeting was arranged for January 11th, this time with representatives of the Transferee. The complainant couldn’t attend this meeting, as his daughter was ill and he was on a rostered day off. He was present at a meeting on January 19th, which he said was attended by a Manager, “Mr D,” and the HR Manager at the time and who is now the CEO. At the meeting, “starter forms” were issued to the transferring employees, for them to fill in with personal details such as addresses, phone numbers and PPS numbers. There was also a line for the start and finish date for each employee’s contract, which was to be filled in by fixed-term employees. The finish date on the form that was completed for the complainant was blank. The tick box to select permanent or temporary on the complainant’s form was ticked at “permanent.” In evidence, the complainant said that this part of the form was completed by the manager from the Transferee’s company. The complainant said that there was no discussion of any substance at this meeting, apart from an indication that a pay increase was on the cards and the staff were also asked to submit their sizes for new uniforms.

Before the transfer on February 6th, the complainant said that he met the Nursing Home Manager again, to ask her if he would be kept on after the end of his contract. In evidence, the Manager said that she couldn’t give an undertaking about the complainant’s contract being extended, as this would be a matter for his new employer.

Move to the Transferee

Shortly after the Transferee took over the cleaning, catering and laundry work at the nursing home, the complainant was asked to train the manager, Mr D, and a new chef in the dietary requirements of the residents. He said that soon afterwards, Mr D, “went from a suit to a chef’s uniform” and assumed charge over the kitchen.

On March 1st, the complainant was requested to attend a meeting the following day with the Director of Operations and the owner of the Transferee company. At the meeting, he was informed that he was no longer required and he left the premises before lunch on that day. He was paid two weeks’ wages in lieu of notice.

Since the termination of his employment on March 2nd, the complainant said that he has worked in temporary and relief jobs and has been employed for around 40% - 45% of the time. He started in a permanent job on November 28th 2017.

For the Transferee, the CEO said that they met the affected staff at meetings on January 11th and 19th. She said that the employees were told that their jobs were safe and their terms and conditions would not change. She said that due to a new Employment Regulation Order for the contract cleaning industry, the cleaning staff were entitled to pay increases. This was explained at the meeting on January 19th.

In cross-examination, the CEO said that, at the meeting on January 19th, she recalls that the complainant asked questions and that afterwards, he had a one to one meeting with the Director of Operations.

When she was asked why the complainant was not kept on following the expiry of his fixed-term contract, the CEO said that the person who replaced him, Mr D, is a qualified chef and although he had been with the company for around one and a half years in a management role, she decided to appoint him to the role of head chef in this newly acquired contract. Mr D has since left the company and has been replaced by another chef.

When she was asked why the complainant was retained for two weeks after the end date of his contract, the CEO said that this was a “paperwork delay.”

The Legal Framework

The issue for consideration here is whether the Transferee complied with Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The relevant sections in respect of this complaint are regulations 4, 5, 7 and 8.

Regulation 4(1) relates to the transfer of contractual entitlements and provides that:

“The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

Regulation 5(1) prohibits the dismissal of an employee by reason of the transfer:

“The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee are prohibited.”

Regulation 7(2) addresses the circumstances where a part of a business “does not preserve its autonomy” as a result of the transfer and where, as a result of this, the employees who were represented in the old set-up no longer have the same level of representation. This section provides for the election of new representatives:

“Where an undertaking, business or part of an undertaking or business the subject of a transfer, does not preserve its autonomy after the transfer, the transferee shall arrange for the employees transferred who were represented before the transfer to choose a person or persons from among their number to represent them (including by means of an election) during the period necessary for the reappointment of the representatives of the employees or the reconstitution of their representation.”

Regulation 8 sets out the requirements of the Transferor and the Transferee to inform and consult the employees’ representatives. However, section 8(5) and 8(6) specifically address the circumstances where there are no employee representatives:

“(5) Where there are no employee’s representatives in the undertaking or business of the transferor, or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

“(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)   the date of the proposed transfer;

(b)   the reasons for the transfer;

(c)   the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and

(d) any measures envisaged in relation to the employees.”

Findings

The five complaints presented by the complainant may be categorised under three headings:

Consultation about the Transfer of Employment: CA-0012971-008

No information or inadequate information was provided to me by my new employer.

Having considered the submissions of the parties and the statements of the witnesses, it is my view that the consultation with the affected staff and the Transferee was appropriate and adequate for the circumstances. Before the transfer took place on February 6th 2017, two meetings were arranged with the staff and representatives of the Transferee. Following the second meeting on January 19th, the complainant had a one to one meeting with the Transferee’s director of operations. There is no evidence that information that should have been communicated to the complainant was withheld.

The Selection of Representatives: CA-0012971-004 and 007

My new employer failed to ensure the selection of representatives to represent the employees’ interests during and after the transfer of my employment.

In all, 16 employees were involved in the transferring part of the business. There was no trade union or staff council in the nursing home and, in my view, it was appropriate to consult with the 16 employees as a group, rather than nominating or electing one or two people to represent their interests.

Protection of Terms and Conditions of Employment: CA-0012971-001 and 002

Following the transfer of my employment, my new employer failed to ensure that my terms and conditions were protected and I was dismissed.

It is clear from the complainant’s evidence that there was no change to his terms and conditions as a result of the transfer. When he was recruited in October 2016 and before the transfer of his employment on February 6th 2017, the complainant had an expectation that he might be “kept on.” Following the transfer, he continued to have this expectation, but he was dismissed on March 2nd 2017. The crux of this complaint is the fact that his contract was not extended and he was not offered a permanent position by the Transferee.

At the hearing, it was submitted that this was an unfair dismissal within the meaning of Section 6(1) of the Unfair Dismissals Act; however, as the complainant had just 20 weeks’ service, he has no protection under that Act. This complaint has been submitted as a breach of the Transfer Regulations and the issue I have to decide on is if his dismissal is a breach of Regulation 5, which prohibits dismissal by reason of the transfer.

The complainant’s fixed-term contract was due to expire on February 11th 2017. His employment was not terminated on that day, and there appears to have been no discussion with him about the Transferee’s intentions. At some point following the changeover on February 6th, the Transferee decided to appoint a member of their own staff as the Head Chef, and on March 1st, the complainant was informed that he was to finish up the next day.

Findings

The Transferee said that the complainant’s employment was not terminated on the end date in his contract because of “a paperwork error.” I find this somewhat implausible, as there were only 16 employees involved in the transfer and the position of Head Chef was a significant job.   It is my view that the HR Manager and possibly other managers would have had clear knowledge of the termination date in his contract.

If the Transferee had intended to dismiss the complainant on the end date specified in his contract, it would have been reasonable to have given him notice to this effect.   He didn’t receive any notice and the failure to end the contract on the stated end date increased his expectation that he would continue in employment.

There was no sign that the person he was replacing who was on long-term sick leave was about to return.   In the absence of any discussions with him to the contrary, this gave the complainant more reason to expect that he would be kept on.  

At the hearing, the complainant said that he trained Mr D in the dietary requirements of the residents.   Mr D was employed as a manager with the Transferee. In her evidence, the CEO said that he was a qualified chef and they decided to appoint him to the job of Head Chef in the nursing home.

From these facts, it would appear that the termination of the complainant’s contract was related in some measure to the transfer of the business. It is my view that, if the transfer had not occurred, it is possible that the complainant would still be employed in the nursing home.

Having considered the submissions, the representations made by the parties and the witness evidence, I have decided that the complaint related to the complainant’s dismissal, CA-0012971-001, is well-founded. I have decided that there is no evidence of any breaches of the Regulations concerning consultation, employee representatives or terms and conditions of employment (CA-0012971-002, CA-0012971-004, CA-0012971-007 and CA-0012971-008).

Taking account of the complainant’s total service of 20 weeks and the fact that his fixed-term contract ended two weeks after the purported end date, I make an award of five weeks’ pay. This represents 25% of the complainant’s earnings with the Transferor and the Transferee and in my view, as required by section 5(c) of the Regulations, is “just and equitable in the circumstances.”

TUPE, dismissal