ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016396

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

This decision relates to claim ADJ – 00016396.

The Respondent carries on business as a retail pharmacy The Complainant commenced employment as a Stock Controller with the Respondent in August, 2004. The Complainant’s duties included security, opening and closing the store, customer service, approving returns and applying discounts, working on the tills and stocking shelves.

In June 2018, the Complainant was advised of the Respondent’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-0021285-001 – that the Complainant’s Terms and Conditions within his contract were not transferred to his proposed new employer. Claim 21160 – 002 referred to the employer terms transferred to so are not before this employer to answer.

CA-00214285-003 – that the Complainant was dismissed by the Respondent on the grounds of the transfer of undertaking.

CA-00214285-004 – that the Respondent did not inform employee representatives of certain details of the transfer.

CA-00214285-005 – Unfair Dismissal

Complaint CA-000214285-003 and CA-00214285-005 were withdrawn by the Complainant’s representative at the outset of the hearing as the employee is still in employment.

Summary of Complainant’s Case:

It is the Complainant’s case that: The Respondent did not ensure that the Complainant’s terms and conditions of employment transferred to his proposed new employer. The Respondent did not inform the Complainant, or any employee representative(s), of details of the transfer and, in particular, the legal, economic and social implications of the transfer for the Complainant.

CA-00021160-001: Complaint pursuant to Regulation 10 of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003):

The Complainant alleges that his proposed Contract of Employment with the proposed new employer contains substantially less favourable terms and conditions for the Complainant. The Complainant has detailed fully the terms of the proposed contract which are less favourable in correspondence to the proposed new employer, dated the 16th August, 2018 and the Complainant repeats and relies upon all of those terms in support of his complaints against the Respondent. The 2003 Regulations safeguard the Complainant’s terms and conditions of employment and the complainant allege it is clear from a comparison of the Complainant’s contract with the Respondent and the proposed new employer’s proposed contract, that the Respondent’s proposed terms and conditions are significantly less favourable, and that the Respondent made no efforts to ensure that the Complainant’s terms and conditions of employment would be transferred and implemented by the proposed new employer.

CA-00021160-004: Complaint pursuant to Regulation 10 of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

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 complainant allege the Respondent failed, refused and/or neglected to provide the Complainant with that information. In fact, the Complainant was provided incorrect information as the Respondent asserted that the transfer of his 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, the Respondent was in breach of its obligations pursuant to Regulation 8 of the 2003 Regulations.

Summary of Respondent’s Case:

On 8 June 2018 the Complainant met with the respondent’s Territory Manager and the Store Manager. The Complainant was provided with a letter dated 8 June 2018 outlining that his position was to be transferred to on July 16th, 2018 following a decision by the Respondent to outsource the security function. At this meeting the Complainant told the Respondent’s representatives that he was advised not to speak with them and that his advisors would be writing to the respondent.

The Complainant’s advisor wrote to the respondent dated 11 June 2018.

The Respondent wrote to the Complainant on 21 June 2018, noting his advisors correspondence and confirming that all correspondence would continue to be directed to the Complainant.The Complainant’s advisor wrote to the Respondent dated 22 June 2018. The Complainant’s advisor requested that they "be given reasonable notice of any meetings you wish to have with our client".

The Respondent’s H.R. Manager was in contact with the Complainant on June 21st and 22nd 2018 in order to arrange a meeting with the transferee. The meeting was confirmed and was held with a representative of the transferee on June 28th 2018. The Complainant’s adviser did not attend this meeting.

On June 28th 2018 the Respondent wrote to the Complainant and copied his advisor. Attached was a copy of the contract of employment and the employee handbook. In line with the Respondent’s obligations under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 it was again confirmed that the Complainant would “transfer on a continuous service basis and on no less favourable terms and conditions of employment ".

On July 5th 2018 the Complainant’s advisor wrote to the Respondent and attached a copy of the correspondence issued to the transferee.

On July 10th 2018 the Complainant’s advisor wrote to the Respondent attaching a consent form authorising the Respondent to release a copy of the Complainant’s terms of employment together with the employee handbook to the transferee.

On July 18th 2018 the Complainant’s advisor wrote to the Respondent attaching a medical certificate effective from July 16th 2018. In line with the transfer regulations the Complainant’s employment had transferred to the transferee with effect from July 16th 2018.

A P45 was raised by the Respondent confirming the Complainant’s cessation date as July 15th 2018. On July 25th, 2018 the Complainant’s advisor wrote to the Respondent with a GDPR access request.

The Respondent’s Data Protection Officer responded to the Complainant’s Advisor on August 22nd, 2018.

On August 1st, 2018 the Complainant’s advisor corresponded attaching a medical certificate for the Complainant.

In line with the provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S I No. 131 of 2003) the Complainant’s employment transferred to the transferee with effect from July 16th, 2018. On August 23rd, 2018 the Respondent’s HR Manager wrote to the Complainant’s advisor notifying the Complainant that he no longer needed to forward copies of his Medical Certificates as he was no longer an employee of the Respondent.

The Complainant has taken a position that he has been unfairly selected for transfer and retention. The Respondent fulfilled its obligations under the regulations. It is established practice as set out in Elizabeth Collins V J Donohue Beverages Ltd (ADJ-00007777) that liability transfers to the transferee as at the date of the transfer. 

In conclusion, it is respectfully submitted that the Complainant’s employment was transferred to the transferee with effect from July 16th 2018 and that the Respondent acted reasonably and in compliance with the regulations at all times.

Findings and Conclusions:

CA-0021285-001

The complaint before me is that the pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) – that the Complainant’s Terms and Conditions within his contract were not transferred to his proposed new employer. It was established at the hearing, and confirmed by both the transferor and transferee that the Complainant’s contract of employment was provided to the transferee and therefore the Respondent has met this obligation under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

CA-00214285-004

Complaint pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) – that the Respondent did not inform employee representatives of certain details of the transfer. The Respondent has demonstrated that they communicated with the Complainant and informed him of the details of the transfer, both by written correspondence and with face to face meetings, and therefore the Respondent has met this obligation under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

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 of 2003) require that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

CA-0021285-001The Respondent has met all obligations under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) and therefore the claim fails.

CA-00214285-004The Respondent has met all obligations under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) and therefore the claim fails.

Dated:   16/04/19

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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