ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016395

Parties:

Complaint(s):

Date of Adjudication Hearing: 23/11/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131 or 2003 and Section 8 of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

As ADJ-00016395 and ADJ-00016396 related to the same complainant, the complaints were heard together and separate decisions have been issued in respect of each separate complaint.

This decisions refers to ADJ - 0016395

The Respondent carries on business as a security and business support provider. The Complainant commenced employment as a Stock Controller with this Pharmacy Retail Company (the transferor) in August, 2004.

The Complainant’s duties, during the course of his employment with the transferor included security, opening and closing the store, customer service, approving returns, applying discounts, working on the tills and stocking shelves.

In June 2018, the Complainant was advised of the transferor’s intention to outsource its security function to a third party and that the Complainant’s position would be transferred.

The transfer took place on16/07/18 and the Complainant is seeking adjudication in relation to the following:

CA-00021160-001:refers to transfer of terms from previous employer/transferor so this is not relevant to this employer.

CA-0021285-002: that the Respondent did not ensure that the Complainant’s Terms and Conditions within his contract were transferred from the transferor i.e. his previous employer.

CA-0021285-003:refers to unfair dismissal due to transfer

CA-0021285-004: the previous employer didn’t inform employee representative’s reference transfer – not applicable to this employer.

CA-00214285-005:that the Respondent was unfairly dismissed from his employment

Complaint CA-000214285-005 and CA-0021285-003 were withdrawn by the Complainant’s representative at the outset of the hearing as he’s still in employment.

Therefore the claims correctly before me relevant to this employer and claim is CA-0021285-002

Summary of Complainant’s Case:

It is the Complainant’s case that: The Respondent did not ensure that the Complainant’s terms and conditions transferred from his previous employer. The Respondent’s proposed contract is on less favourable terms and conditions to the Complainant’s detriment;

It is alleged by the Complainant that the Complainant’s proposed Contract of Employment with the Respondent contains substantially less favourable terms and conditions for the Complainant:

The Complainant was employed as a ‘Stock Controller’ with the transferor, albeit that his duties were largely security based. The Respondent’s proposed contract provides that he would be a ‘Security Guard’. The Complainant’s concern is that he would be restricted in the work he could perform in the course of employment with the Respondent by contrast to his employment with the transferor where he performed additional duties that were not security related. This is especially relevant when considered in the context of the following term;

Significantly, the Complainant’s primary place of employment with the transferor was fixed since 2004. Pursuant to the Respondent’s proposed contract of employment, while the Complainant’s normal place of work would include this fixed base, it also provides that by reason of operational circumstances the Complainant could be required to work at any of the Respondent’s or its customers’ premises, including those situate outside the State. Of particular concern to the Complainant was the failure of either the Respondent or the transferor to confirm the tenure of the Respondent’s contract with the transferor, which he believes is for a 12-month period. The Complainant’s security of employment at the transferor’s premises is therefore unknown.

The Complainant had the benefit of sick-pay with the transferor but has no entitlement to same with the Respondent. This constitutes a diminution of benefits.

The Complainant has strict training requirements under the Respondent’s proposed contract, which were never part of his employment with the transferor. Furthermore, the Complainant is liable for the costs of that training in the event of him leaving the Respondent within 6 months of the date of completion of such training. The Complainant’s liabilities to the Respondent are therefore more onerous.

The Respondent’s proposed contract provides for Lay-Off/ Short-Time, neither of which were provided for in his contract with the transferor C. Together with the uncertainty of the tenure of the Respondent’s contract with the transferor, the Complainant’s job security is clearly an issue;

The Complainant received staff discounts and annual bonuses from the transferor, together with a dry-cleaning allowance. The Complainant does not have the same benefits under the Respondent’s proposed contract and this too constitutes a diminution of benefits.

The Complainant has detailed fully the terms of the proposed contract which are less favourable in correspondence to the Respondent, dated the 16th August and the Complainant repeats and relies upon all of those terms in support of his complaints against the Respondent herein.

The 2003 Regulations safeguard the Complainant’s terms and conditions of employment and it is clear from a comparison of the Complainant’s contract with the transferor and the Respondent’s proposed contract, that the Respondent’s proposed terms and conditions are significantly less favourable, and that the Respondent made no effort to ensure that the Complainant’s terms and conditions of employment with the transferor would be transferred and implemented.

The Complainant sought to engage with the Respondent from an early stage in order to procure all relevant information concerning the proposed transfer of undertakings. However, the Respondent failed, refused and/or neglected to provide the Complainant with that information.

In fact, the Complainant was provided incorrect information as the transferor asserted that the transfer of the Complainant’s employment would be on ‘no less favourable terms’ and that it was envisaged that there would not be any legal, economic or social implications resulting from the transfer.

It is submitted that there were in fact significant implications for the Complainant arising from the transfer. The Respondent was obliged to inform and advise the Complainant of same, and having failed to do so, they were in breach of their obligations pursuant to Regulation 8 of the 2003 Regulations.

The Respondent asserts that the Complainant’s transfer was ‘fully discussed’ with him at a meeting on the 28th June, 2018. It is accepted that the parties met on that date, but it is disputed that the transfer was ‘fully discussed’. The Complainant repeatedly sought clarification of the proposed contract and was not furnished a copy until the 20th July by which stage the consultation process was over, the purported transfer had taken place, and the Complainant was supposed to present for work.

The complainant allege it is clear from the Respondent’s own records that it was at all times aware of the issues requiring clarification in respect of the Complainant’s duties. The Respondent’s attitude to the Complainant is aptly highlighted by an internal e-mail from the Respondent’s Business Development Manager, dated the 27th June, which states “…all he is looking for is a bit of reassurance and he’ll be grand, so just buy him a coffee and take the softly softly approach with him. If he disagrees with any of the T&C’s just take a note of it and we’ll query them.”

The Respondent asserts that, as far as it is concerned, the Complainant’s job is the ‘exact same’ as previously held with the transferor. Having regard to the foregoing submissions, this is clearly not the case. Of significant note is the apparent lack of job security in the local area which increases the likelihood of the Respondent invoking the proposed mobility clause, to the Complainant’s detriment, and the loss of many work benefits.

It is absolutely denied that the Respondent proposed a meeting whereby the issues raised by the Complainant could be discussed and reconciled so as to obviate the need for the Complainant to proceed with a complaint before the Workplace Relations Commission, as alleged in its submissions. The Complainant is a stranger to this assertion, and it is denied that any such proposal was ever put to the Complainant, or, indeed, refused by him. In fact, the Respondent’s submissions are the first indication of its response to the Complainant’s objections to the proposed contract, notwithstanding that the Respondent has been aware of same since, at the latest, the 16th August, 2018.

It is of note that the Respondent accepts a number of the Complainant’s objections, thereby acknowledging that the Complainant’s terms and conditions have been altered in less favourable terms, but has failed, refused and/or neglected to ever advise the Complainant how it proposed deal with those objections and, in the circumstances, the Complainant has had no option but to pursue the within claim. The Respondent’s refusal to engage meaningfully with the Complainant has irreparably undermined any trust and confidence the Complainant could be expected to have in the Respondent as an employer.

Summary of Respondent’s Case:

A decision was made by the Complainant’s employer to outsource their facilities management and security function and they began a tender process whereby the successful tenderer appointed the Respondent as the security service provider.

A major part of this arrangement was the Respondent would take on the incumbent security staff who were directly employed by the transferor via the Transfer of Undertakings – Protection of Employment (TUPE) process. The transfer was due to take effect from 16th July 2018.

As part of the Respondent’s consultation with the mandatory 30 day notice period, the Complainant met with the Respondent’s Operations Manager on 28th June 2018 where the Complainant’s proposed transfer to the Respondent was discussed.

Whilst the Complainant queries why the transferor were giving the security contract to the Respondent, he was referred back to a letter issued to him by the transferor and advised him to speak to them on the matter.

Following the date of the transfer on 16th July 2018, the Complainant’s first rostered day of duty was Friday 20th July 2018, but prior to this a medical certificate was received by the Respondent to the effect that the Complainant would not be attending for work. The Respondent has received a similar certificate to cover each week subsequent to this, via the Complainant’s solicitor.

The Respondent received permission from the Complainant via his solicitor for his contract with the transferor to be shared with the Respondent, and based on this, a contract with the Respondent was issued to the Complainant’s solicitor on 27th July 2018 for perusal.

Shortly afterwards, the Complainant’s solicitor wrote to the Respondent advising that a Subject Access Request was being submitted under the General Data Protection Regulations, for documentation pertaining to the Complainant. The Respondent was also notified of the Complainant’s intention to lodge a complaint with the Workplace Relations Commission.

The Respondent reverted to the Complainant’s solicitor stating that no detail had been provided as to which elements of the contract were omitted or incorrect. The Respondent also proposed a meeting whereby any issues of confusion could be reconciled without wasting the time or the WRC, however, this proposal was never accepted by the Complainant and no such meeting took place.

Following on from this, the Respondent received correspondence from the Complainant which outlined his position with regard to a list of sixteen items on the proposed contract of employment which they deemed to be less favourable to the Complainant.

Of the sixteen points raised by the Complainant, the Respondent takes issue with six and fully accept the other ten. A Copy of the employee handbook was also forwarded to the Complainant as requested,

The Respondent does not have any issue with the Complainant transferring to the Company. As far as the Respondent is concerned, this job is the exact same job as previously held with the transferor. There was another member of staff of the transferor in another branch that transferred to the Respondent Company and he continues to work for them.

The Respondent fails to understand the issues that have been raised by the Complainant on the bases that the Respondent entered this arrangement in good faith and in the knowledge that all the Complainant’s terms and conditions would be transferred, resulting in a long and lasting working relationship. They allege it is most unfortunate that the Complainant was not prepared to sit down and meet the Respondent face to face and sort out the issue now raised.

The Respondent stated they have years of experience dealing with the TUPE process and have always found that the staff coming on board were always satisfied with the way in which we deal with this very sensitive matter.

The Respondent notes that the Complainant continues to submit medical certificates stating “work related stress” despite the fact that he has yet to work for us in any way, shape or form.

Findings and Conclusions:

CA-0021285-002:The relevant claim in this case is that the Respondent did not ensure that the Complainant’s Terms and Conditions within his contract were transferred from the transferor. The employee has been absent from work since the date of transfer so communication with the new employer has been via the employees representative in written communication.

The following points in particular were discussed at length during the hearing:

1. The Complainant was employed as a Stock Controller. He will now be employed as a Security Guard.
2. The Respondent stated that the Complainant never worked as a Stock Controller and worked as a Security Guard for the transferor.
3. Relocation is a condition of employment in the contract with the Respondent and this is less favourable than his previous contract with the transferor.
4. There is a probationary period outlined in the contract of employment with the Respondent. The Respondent stated that this is a standard contract given to all staff and that the probation period does not apply to an employee with 14 years’ service.
5. The clause regarding deductions is less favourable than his previous contract with the transferor and he is being asked to indemnify the employer.
6. The complainant had sick pay with the transferor of 3 days pro rata to hours. He is now being offered no sick pay. The Respondent states that he is entitled to 5 weeks sick pay as per the Employment Regulation Order for the Security Industry.
7. The contract includes a clause that there will be a deduction for the Complainant’s uniform if it is not returned on departure from the Company. The transferor did not provide a uniform but the Respondent Company does and part of the new uniform policy is to return items on departure from the Company.
8. The contract states that the Complainant must meet the requirements of the Private Security Authority and that this is a mandatory requirement of the role.
9. There is no reference to Employee Negligence in the Complainant’s contract with the transferor. The Respondent stated that this would normally fall under the Company Disciplinary Procedure.
10. The use of a “Body Cam” is in the new contract of employment. The Respondent stated that this is not a requirement at the moment.
11. The complainant is required to be Garda Vetted. The Respondent stated that he cannot get a PSA licence without this and the PSA licence is a job requirement.
12. There is a clause regarding Patents and Intellectual Properties which the Complainant states was not in his previous terms and conditions.
13. There is a clause regarding Lay Off or Short Time. The Respondent argues that this is not worsening the Complainant’s terms and conditions.
14. Variation Clause
15. Gross Misconduct.
16. There are some extra conditions included under gross misconduct.
17. The Complainant had a staff discount with the transferor.
18. Christmas Bonus.
19. The Complainant got a Christmas bonus to “recognise the extra efforts made during the busy Christmas period” of one week’s wages.

In relation to the points above, the following are my findings and conclusions. It was deduced at the hearing that the complainant was issued with a contact based on a template in use by the respondent based on the complainant’s request. However as a result the terms differ from his original contract.

1. I am satisfied that the Complainant’s role is that of Security Guard.
2. Relocation is to be taken out of the updated contract of employment.
3. The probation period has passed it is obvious that this does not now apply in practice.
4. The reference to deductions is to be taken out of the updated contract of employment.
5. I am satisfied that the Complainant’s entitlement to sick pay has been enhanced within his updated contract of employment.
6. This is a new requirement as part of the Respondents standard uniform policy and is a reasonable one.
7. Meeting the requirements of the Private Security Authority is a mandatory requirement of the role and it therefore essential to remain.
8. Employee negligence is a reasonable clause to include in any contract of employment or disciplinary procedure.
9. The use of a Body Cam to be taken out of the contract. However, this can be included going forward as a reasonable request from the employer should it be justified once the employee has been trained and informed reference same.
10. It is a job requirement to be Garda vetted and so this is required to be included in the updated contract of employment.
11. The Company is entitled to take steps to protect Patents and Intellectual Property and so this is a reasonable request.
12. It is reasonable for the Company to allow for action to be taken in the case where lay off or short time is unavoidable.
13. The variation clause is to be taken out of the updated contract of employment as we are ensuring that his current terms and conditions have transferred.
14. The additional examples of gross misconduct are reasonable inclusions.
15. In relation to the staff discount, the Respondent said that they will come to an agreement with the transferor to provide the Complainant with same. However, the Respondent cannot be expected to give the same discount in the previous employer’s store as they do not have control over that now the employer does not control both businesses.
16. The same wording and conditions to the Christmas bonus will apply going forward.

Decision:

Section 41 of the Workplace Relations Act 2015 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131 or 2003) requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. The fact the employee has been absent from work since the date of the transfer on work related stress has meant the communication between the parties has been via written communication. The opportunity to discuss and clarify the concerns outlined in the claim was constructive. I find that the Complainant is entitled to a contract of employment with the amendments outlined above addressed, to ensure that his terms and conditions of employment with his new employers are no less favourable than with his previous employer prior to the transfer.

Dated:   16/04/19

Workplace Relations Commission Adjudication Officer: Caroline McEnery