Complainant

Respondent

Anonymised Parties

A head chef

A nursing home

Representatives

Norma Sammon BL, instructed by Barron Morris, Solicitors

Einde O’Donnell, 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-00012971-003

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-00012971-005

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-00012971-006

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 (the Transferor) 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 as they are set out on the complaint form.

Reference number

Outline of Complaint

CA-0012971-003

A consultation meeting was held on January 6th 2017 by my former employer, however it was lacking in specific data required under the 2003 regulations and left us wholly unprepared for the transfer.

CA-0012971-005

There was no attempt by my former employer to ensure that my terms and conditions transferred, which led to the situation where my new employer sought to change my terms and conditions and I was subsequently dismissed.

CA-0012971-006

As a result of the failure to properly consult and / or select representatives, essential details were not conveyed properly to me by my former 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.

The nursing home manager said that she recruited the complainant in October 2016. When she discussed the role with him, she said that the complainant said that he and his brother “come as a pair.” At the time, there was a vacancy for a second chef and the complainant’s brother was offered a permanent position. The manager said that she explained to the complainant that she couldn’t offer him a permanent role due to the absence of the head chef on sick leave.

Late in 2016, the directors selected the Transferee’s company as the out-sourced provider of catering, cleaning and laundry services and the staff were called to a meeting on January 6th. The complainant attended this meeting and he spoke with the manager afterwards and asked her about his contract. The manager said that she told the complainant that his job was safe for the duration of the contract, but that she couldn’t say what would happen after that.

In cross-examination, the manager said that before the actual transfer on February 6th, she had around 10 meetings with the facilities company that won the contract.   She said that during these meetings, she never asked about the complainant being retained for longer than the end date of his contract and when she met him to discuss the matter, she said that she didn’t give him any undertaking that he would be kept on.   She said that, as of the day of the hearing, the permanent head chef remains on sick leave and there is no indication of when he will be back at work.

The Legal Framework

The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.”   Article 3(1) of the directive provides that,

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

The Directive goes on to provide that member states may create a continuing liability on the Transferor, post-transfer; however, this has not been transposed into SI 131/2003.   As a result, the basic principle in Article 3 of the Directive that liability passes from the Transferor to the Transferee is the applicable law in Ireland.

In the decision of the Court of Justice of the European Union (CJEU) in Berg v Besselsen IRLR 447, the Court referred to the option of member states to enact legislation to include the Transferor in ongoing liabilities under a contract of employment; but, where this has not happened, the Court stated:

“It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer…”

Liability in this Case

In the case under consideration, there is no dispute that, 30 days before the transfer took place, the Transferor engaged in meetings with the transferring employees to notify them of the transfer and to discuss the implications for them arising from the transfer. The complaint is about the extent of the consultation and the complainant is not satisfied that the consultation was adequate.

Having considered the effect of the legislation, and the jurisprudence of the CJEU, I find that a complaint against the Transferor may not be pursued under SI 131/2003, as all liabilities under the complainant’s contract of employment passed to the Transferee on the date of the transfer, February 6th 2017.

I have concluded that I have no jurisdiction to adjudicate upon a complaint against the transferor in this case, and therefore, complaints CA-0012971-003, CA-0012971-005 and CA-0012971-006 are not upheld.

TUPE, liability of transferor