Complainant

Respondent

Anonymised Parties

A Cleaning Supervisor

A Cleaning Company

Representatives

Jurga Petkus

Did not attend

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-00020403-001

06/07/2018

The complainant was employer by her previous employer between 2013 and 2018. The respondent became the complainant’s employer on or about 3rd June 2018. The complainant is employed as a Cleaning Supervisor, works 20 hours per week and is paid €10.40 per hour.

The complainant stated that her established terms and conditions of employment were changed without agreement when she became an employee of the respondent on or about 3rd June 2018. The complainant stated that she is now required to work on Sundays and Public Holidays, whereas previously she was not required to do so. The complainant also stated that, as a Supervisor, she should be paid €11.80 per hour as everyone else is paid €10.80 per hour having received a €1 per hour pay increase. The complainant stated that her rate of pay is currently €10.40 per hour, having lost the Supervisor’s pay differential and not having been awarded the €1 per hour pay increase. The complainant is also seeking an additional payment for working on a Saturday in recognition of the speed and rate at which she works while working to complete her tasks on that day. The complainant is seeking one additional hours pay per week in that regard.

The respondent did not attend the adjudication hearing and was not represented.

It is regrettable that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint.

Regulation 4 (1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) provides as follows:

(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.

The complainant stated in evidence that, previously, she did not work on Sundays or Public Holidays whereas she is now required to work on Sundays without any additional payment and is also required to work on Public Holidays. The complainant also stated in evidence that she is now in receipt of an hourly rate of pay that is less than she was paid while employed by her previous employer.

I note the complainant’s evidence that she works at a particular rate to a finish on a Saturday and is seeking that this be recognised by the payment of an additional hours pay each week. As this was not an established term of the complainants’ employment prior to the transfer taking place in June 2018, I do not find in favour of the complainant on this issue.

Based on the totality of the evidence adduced, and in the absence of any participation from the respondent in the adjudication process, I am satisfied that the complainant’s terms and conditions of employment were unilaterally changed by the respondent in contravention of Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

Accordingly, I declare that the complaint is well founded.

The respondent is directed to comply with the provisions of Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 by restoring the complainant’s previously established rate of pay and to discharge the payment of all arrears due to her. The respondent is also directed to comply with the complainant’s established terms and conditions of employment with respect to Sundays and Public Holidays. The respondent is also directed to pay the complainant €2,000 in compensation.

Transfer of Undertakings Regulations