ADJ-00017624

Complainant

Respondent

Anonymised Parties

An Administrator

A Country House and Estate

Representatives

A&L Goodbody Solicitors

Act

Complaint 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-00022729-001

20/10/2018

The following is a summary of the Complainant’s case.

The Complainant claims that on 30 May 2018, she opened a letter from Mr A, Director with the Respondent, which was dated 23 May 2018, which was left in her office in-tray. It stated that the Respondent had become her employer by operation of law from 23 May and that it was a TUPE transfer. She said at the same time Mr. B, Director of her previous employer (“Company A”), insisted that Company A remained her employer and confirmed this in writing to her. She said that there was a legal battle in the Courts as to the legal owner to the property which was her workplace and she was unsure what to do or who to believe. She said that she contacted the Workplace Relations Commission to seek advice and decided to file a complaint under the TUPE Regulations against the Respondent.

She said that on 7 June 2018, Mr. A emailed her to instruct her not to use Company A’s funds any longer but instead to pay the other employees' wages from the Respondent’s payroll. The email was delivered after she left the office for the evening. In any event, she said the payroll file had to be uploaded to the bank's system before she received the email and the payments had been made using Company A funds. She said that she informed Mr. A of this. She said that she was later informed by Mr. A and another one of his colleagues to issue all employees of Company A with P45s and transfer them to the Respondent’s payroll. She said that in reply that she had no problem in theory running the Respondent’s payroll, but it was not in her remit to do so without the knowledge and consent of Company A. She also said that Mr. A should have contacted the directors of Company A in relation to admin and payroll matters. She said that she was concerned that this was to be done without the knowledge and consent of the employees as there were GDPR considerations.

The Complainant claims that the Respondent continued to apply pressure on her to transfer the payroll from Company A to the Respondent and she did not feel it should be put upon her to transfer her 15 colleagues without their permission and without the consent of Company A, who continued to state that it was her employer. Mr. A contacted her stating that a local accountancy firm would attend her office on 12 July to support her setting up the Respondent’s payroll. He went on to say that if she was not there could she arrange access for the accountant’s entry. She said that her wellbeing had been suffering as a result of the situation, so she attended her GP who signed her off work from 10 July. She was also prescribed medications to relieve stress and help her sleep. Since that time, she has attempted to gain access to the grounds of the Estate on a personal basis and not a professional basis, however the security guard on the gate informed her that she was no longer on the list of persons approved for access.

She claims that she received a letter from Mr. A on 3 October, informing her that as he had not had a reply to an email sent on 20 July 2018, he assumed she had chosen to remain an employee of Company A. She said that there were incidents prior to the 23 May where Mr A had acted in a way she said were aggressive towards her and she asked the Workplace Relations Commission to adjudicate on who her correct Employer is and if that is deemed to be the Respondent, she determines that she has been constructively dismissed.

On cross examination, during the course of the Hearing, the Complainant said that she wished to withdraw the complaint that she was dismissed by the Respondent as she agreed that she did not transfer to the Respondent.

The following is a summary of the Respondent’s case.

The Respondent has been the owner of the House and Estate since 1999 who had granted residential rights to the Director of Company A. After lengthy legal issues, the Respondent assumed control and possession of the property and served Company A notice to leave the property. This was an acrimonious event and caused much difficulty to the Respondent to notify the staff working in the Estate of the impending change in their Employer.

All the employees were notified of the TUPE regulations in May 2018 and everyone was invited to transfer to the Respondent on the existence of the same terms and conditions. The Complainant was one of the employees that was invited to transfer. It said that she never transferred as she made it clear that she wished to remain employed by Company A. The Respondent said that it engaged in protracted correspondence with her over the summer of 2018 with a view of trying to establish her employment status. All other employees accepted the transfer to the Respondent whereas the Complainant did not. The Respondent stated that the Complainant is employed where she is still being paid by Company A and still looks after its affairs. It said that at no time did she ever seek pay from the Respondent.

The Respondent points to the fact that the Complainant has refused to transfer to the Respondent and she is perfectly entitled to do so. It claims that she was not dismissed as result of the transfer, she simply chose not to transfer to the Respondent, and she remains an employee of Company A.

The Respondent has asked me to take note that in cross examination of the Complainant she said that “I don’t think I transferred over [to the Respondent]” and that “yes I am still being paid from [Company A’s] funds”.

The Respondent has asked that the case be struck out.

At the centre of the Complainant’s case as presented to me at the hearing is a simple question, namely she wishes to determine who her employer is, and should I determine that it is the Respondent she wishes that a case of constructive dismissal be held in her favour.

The Respondent claims that the Complainant chose not to transfer from Company A to work with it, she is still working for and being paid by Company A and it attempted and sought her transfer, but she refused to do so.

I note the contentious background to this case and that there was/is a legal case regarding the property rights.

I am satisfied that the Respondent took control of the Property where Company A had operated and sought to transfer all the employees. I note that an employee has the right not to agree to the change in its employer. The Respondent cited Noakes v. Doncaster Amalgamated Colliers Ltd [1940] AC 1014 and the ECJ decision in Katsikas v. Konstantinidis [1993] IRLR 1979 to demonstrate this accordingly. The Respondent in particular noted the decision in Symantec Limited v Lyons & Leddy [2009] IEHC 256 where the High Court said “the fact than an employee objects to the transfer does not of itself have the effect of negativing the transfer. It is just that an employee is not obliged to continue his employment relationship with the transferee”.

I am satisfied that the Respondent sought clarity from the Complainant whether she was going to transfer over to it, that her job was there. She did not confirm that she wished to transfer over, and she continues to work for Company A and get paid by Company A. I am satisfied that the Respondent was in regular and constant contact with the Complainant and that there was no suggestion at any stage that she was not invited to transfer to the Respondent. Accordingly, I am not satisfied from the evidence adduced that the Complainant can be said to be dismissed by the Respondent under the transfer of undertaking contrary to Section 5(1) of the TUPE Regulations. During the hearing proceedings I am satisfied that the Complainant admitted as much in cross examination.

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;

3.(1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

(2) Subject to this Regulation, in these Regulations -

“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.

Rights and obligations.

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.

Dismissals and termination of employment.

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.

The Regulations essentially provide protections for workers in the event of a legal transfer taking place as between one employer and another employer. Those protections extend to the contract of employment and against dismissal where the transfer is, of itself, the reason for the dismissal.

Conclusion

The Complainant has made it clear that she did not transfer from Company A to the Respondent. She also made it clear that she is still employed by the Company A and has never been paid by the Respondent. The Respondent has attempted at length to determine whether she will transfer or not and she has failed to comply with their requests.

Accordingly, I find that the Complainant remains an employee of Company A and has not transferred to the Respondent by her own choice and therefore was not dismissed by the Respondent due to or in connection with the TUPE.

In those circumstances I find that the case is not well founded and must fail.

I decide that the claim made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 is not well founded.

TUPE regulations – failed to transfer – not well founded