FULL RECOMMENDATION
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES : FASTNET FILMS T/A MUDDY PICTURES DAC (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED ) - AND - LIAM NEVILLE (REPRESENTED BY GMB TRADE UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No: ADJ-00008566 CA-00011231-001
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 21 August 2018. A Labour Court hearing took place on 11 October, 2018. The following is the Determination of the Court:
DETERMINATION:
This matter comes before the Court as an appeal of a decision of an Adjudication Officer in a complaint made by Liam Neville (the Appellant) under the Protection of Employees (Transfer of Undertakings) Regulations 2003 (the Regulations) against Fastnet Films t/a Muddy Pictures DAC (the Respondent).
The Adjudication Officer, in a decision dated 11thJuly 2018, decided that the claim was not well founded and that it failed.
Preliminary matters
The Respondent submitted that Fastnet Films was not a legal entity and was improperly identified as a Respondent in the within matter. In addition, the decision of the Adjudication Officer identified the Respondent as Fastnet Films t/a Muddy Pictures DAC whereas the Appellant had named Fastnet Films t/a Muddy Film DAC as the Respondent in his appeal.
In addition to these matters the Respondent submitted as a preliminary matter that a transfer had not taken place at all within the meaning of the Regulations. The Respondent also submitted that the Appellant was not an employee of the Respondent and had never held a contract of service.
The Court decided, in the interest of efficiency and because a decision in respect of either matter could be determinative of the entire case, to consider two preliminary matters – the issue of whether a transfer had taken place within the meaning of the Regulations and the matter of the correct Respondent – as preliminary matters. The Court also advised the parties that either preliminary matter could, of itself, be determinative of the case. In that event the Court would not be obliged to consider other matters. The parties, at the hearing, accepted the Court’s reasoning and approach to the matter.
Position of the Appellant as regards the occurrence of a transfer
The Appellant submitted that he had worked as a driver for eight weeks from September 2016 to November 2016 on a production of the Respondent. The Respondent commenced another production subsequently and did not offer work to the Appellant. The Appellant submitted that the Respondent was at all times the same legal and economic entity governing both productions. The Appellant submitted that the Respondent was, within the meaning of the Regulations, the transferor and transferee of the Appellant
Position of the Respondent as regards the occurrence of a transfer
The Respondent submitted that the Regulations do not comprehend a situation where a party is alleged to be both transferor and transferee and consequently the Regulations have no application to the circumstances contended for by the Appellant.
The Law
The Regulations, in relevant part, provide as follows
- 2(1) “transferee” means any natural or legal person who, by reason of a transfer within the meaning of these Regulations, becomes the employer in respect of the undertaking, business or part of the undertaking or business;
- “transferor” means any natural or legal person who, by reason of a transfer within the meaning of these Regulations, ceases to be the employer in respect of the undertaking business or part of the undertaking or business;
- “transfer” means the transfer of an economic entity which retains its identity;
“economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.
- 4.(1) 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.
(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.
- 5.(1) 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 is prohibited
Discussion and conclusions on this preliminary matter
The Appellant has made clear to the Court that the within matter concerns a contention the he had been employed by the Respondent and that the Respondent was obliged to offer him further employment when it commenced a subsequent production. The Appellant made clear to the Court that he did not accept that any transfer of undertakings had taken place as between any entities and that the Respondent was at all times the same legal and economic entity. The Appellant submitted that the Respondent was the transferor and transferee within the meaning of the Regulations.
In those circumstances, the Court finds that the within complaint does not relate to a transfer of undertakings as defined in the Regulations. The Regulations can only have application where a legal transfer occurs. The Appellant In the within matter submits that no transfer at all occurred.
The Respondent also submits that no transfer within the meaning of the Regulations occurred.
In those circumstances the Court finds the within complaint to be misconceived and that the within appeal cannot be maintained. Having made that finding the Court is not obliged to consider the matter further and the within appeal must fail.
Determination
The Court determines that, in circumstances where it is common case that a transfer within the meaning of the Regulations has not occurred, the within appeal fails. The decision of the Adjudication Officer is varied.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
MK______________________
15 October 2018Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.