ADJ-00007238

Complainant

Respondent

Anonymised Parties

A Receptionist /Administrator

A Chamber of Commerce (In liquidation)

Representatives

Gay Davoren; HR Consultant

Former President of the Chamber of Commerce and Representative of the Liquidator.

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-00009725-001

15/02/2017

The case concerns an Administrator/Receptionist of a Chamber of Commerce which was merged with another Chamber of Commerce.

 The Complainant alleges that her rights under TUPE were not respected - particularly her rights under Section 8 of the TUPE Regulations (Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) to prior and proper consultation regarding the Transfer.

As per the Claim Form and CA -00009725-001 the claim is that the previous employer (Transferor) did not consult in relation to the transfer.

By way of background the Complainant stated that following considerable discussions between two Chambers of Commerce, for convenience Chamber A (the initial employer – the Transferor) and Chamber B – the Transferee) she was informed on the morning of the 23rd of December 2016 that a merger had been agreed and that all her employment rights were being protected. She had not been informed in advance of this merger agreement and was afforded no consultation rights.

Detailed oral and written evidence was presented by the former President of the Chamber to make the following points

Firstly, the Complainant was a key member of the Administrative staff of the Transferor and would have been fully aware of all discussions and meetings with the Transferee. It was accepted that she might not have attended formal meetings but would have typed up and proof read all relevant minutes etc and been aware of their contents.

Secondly there was a series on meetings in December 2016 between the President of the Chamber and the Complainant prior to the final Transfer Agreement being signed at which her concerns were listened to and taken on board by the President – specifically, a meeting on the 15th December and a meeting on the 16th December 2016. A further meeting took place with the Complainant on the 23rd December, the day following the formal Agreement between the Transferor and the Transferee on the 22nd December. There can be absolutely no suggestion that the Complainant was not fully informed of all developments regarding the Transfer as required by Section 8 of the TUPE regulations.

Thirdly in the Transfer Document at Paragraph 12 a formal commitment is given “in accordance with TUPE” to transfer the Complainant “on the same terms and conditions as her present terms”

Fourthly the Transfer date was the 1st March 2017 and all consultations were well in advance of the 30-day reference under Section 8.2 of the Regulations.

In conclusion therefore, full consultation and information sharing took place and the claim as presented is not well founded and must be set aside.

3:1        The Evidence considered.

It is important to note that these proceedings are taken under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). They are not being taken under any other Legislation such as the Unfair Dismissals Act 1977 or the Redundancy Payments Act, 1967.

The claim is one regarding an alleged lack of Consultation regarding the Transfer of the Complainant’s employment between the relevant Chambers. It was clarified at the oral hearing that this was the specific claim.

Section 8 of the TUPE - Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) applies and is set out below.

Information and consultation.

8.          (1)     The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of - 

(a)     the date or proposed date of the transfer; 

(b)     the reasons for the transfer;  

(c)      the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them  

and  

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

(2)      The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. 

 (3)      The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. 

 (4)      Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.                                                                                                               (5)      Where there are no employees' 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.

The former President of the Transferor gave extensive evidence to the Hearing. Coupled with the Written evidence and copies of e mail traffic between the Complainant and the Respondent both prior to the 22nd December Agreement date and post that date it was clear that the requirement of Section 8 had been fully complied with. The meetings of the 15th, 16th and 23 December and the E mail from the Complainant on the 15th December leave little room for doubt. The inclusion of a separate Paragraph/Article 12 page 2 of the Agreement specifically related to the TUPE rights of the Complainant further strengthens this conclusion.

It is important to note that the Regulations and Section 8 regarding Consultation does not give a right of veto to any employee being impacted upon by a TUPE transfer.

3:2        Conclusion

Accordingly, having considered all the evidence both oral and written, the claim as presented, is not well founded and is dismissed.

Act

Complaint/Dispute Reference No.

Summary decision /Refer to Section Three above for detailed reasoning.

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-00009725-001

Claim is dismissed as not well founded. Regulation 8 regarding Consultation was properly observed.