ADJ-00013958

Complainant

Respondent

Anonymised Parties

A Health Care Worker

A Service Provider

Representatives

Rachel Hartery SIPTU

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00016905-001

17/01/2018

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-00016905-004

17/01/2018

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-00016905-005

17/01/2018

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-00016905-007

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016905-011

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016905-012

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00016905-013

17/01/2018

The Complainant submitted claims relating to a Transfer of Undertaking not taking place, lack of information, consultation and Representative rights, unfair dismissal or redundancy and minimum notice not being paid.

The Complainant was employed from June 25th 2015 to August 29th 2017 as Health Care Assistant.

The Respondent was supplying Heath Care Assistants as a supplier to another Body (described as Company A hereafter).

The Complainants employment was terminated without notice.

The Respondents relationship for supplying Care Assistants to a third party (Company A) was terminated formally by Company A by a general internal notification dated September 4th, 2017 stating “There will be one Principal Supplier for each Category in each Lot (region) as well as up to four second tier suppliers for each Category in each Lot” and “The Implementation date for the new Framework is 1st September 2017. From this date, only the Agencies on the Framework contract may be used for the provision of short term/temporary and locum staff and strict adherence to the terms on which this contract has been awarded must be maintained and …..…there is no authorisation for any (Company A) staff member to use any Agency outside the Agencies formally contracted for a particular staff category in the relevant Lot area”.

The Respondents local Manager and Regional Manager were aware that this change was about to happen.

The Respondent did not communicate with the Complainant effectively, did not provide any information regarding her employment status nor did they engage with the Complainants Representatives.

When a new Agency (Company B) took over the contract the Complainant was not rostered for work and we contend her termination was either an unfair dismissal or a redundancy, if no transfer of undertaking took place.

The Complainants Representatives wrote to the Respondent on August 14th to ascertain the Complainants employment status and received no response.

The Complainants Representatives contacted the Respondent by phone and were informed that there would be no work for the Complainants category of employment after September 2017.

The Complainants rights to consultation to representation were infringed by the Respondent.

We also contend that the Complainants were either the subject of a Transfer of Undertaking to the “Principal Supplier” or were made redundant by the Respondent on the basis of no work being available for them or were unfairly dismissed as the Respondnet did not look to see what alternative employment was available for the Complainant through any analysis of criteria of other categories of employment which the Complainant could have easily undertook. The Complainant was informed by the Respondent to contact the Principal Suppler themselves to seek work and the Respondent stated the Complainant would be processed as a “Leaver”.

The case for an Unfair Dismissal claim is that the Respondent was unreasonable and did not do wat a reasonable employer would do. The Complainant found herself unemployed with no facility to transfer, no alternative employment was suggested or considered by the Respondents and she was dismissed through no fault of her own.

The Complainant was not given any notice and she is seeking payment of 4 weeks’ notice.

The Complainants rights to representation under regulation 7 were not complied with nor were her rights to information and consultation under regulation 8.

Under the Acquired Rights Directive the Complainant was entitled to consultation and representation.

The Complainant also contends that an economic activity existed and transferred to the principal Supplier and a Transfer of undertaking in the fullest meaning of the legislation occurred and the Complainant should have transferred to the Principal Supplier.

In the event that the Adjudicator finds that no transfer took place the Complainant was either unfairly dismissed or made redundant and is also entitled to notice pay.

The Complainants Trade Union Representatives submitted substantial legal directives and precedents to support her claim.

The matter before the Adjudicator are multiple claims under Regulation 10 the European Communities (Protection of employees on transfer of Undertaking regulations) 2003, and claims under Section 8 of the Unfair Dismissals Acts, Section 11 of the Minimum Notice terms and Conditions of Employment Act 1977, and   Section 39 of the Redundancy Payments Act 1967, by the Complainant against her former employer.

It is the position of the Respondent that the Complainant’s employment was subject to a transfer of undertakings, according to Section 3 of S.I. No. 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) regulations 2003, and the Complainant was neither made Redundant or Dismissed by the Respondent, as her employment transferred to incoming employer (The Transferee).

The Complainant began her employment with the Respondent on or about the 5th September 2014 as a part-time Health Care Assistant and was assigned to work in Company A.

In or around the 10th August 2017, Company A sent an E-mail to all Company A management staff outlining the New Multi-Supplier framework for the Provision of short-term temporary and locum health Service Agency Placements. The Framework covered five categories of staff including Health Care Assistants. The E-mail was sent to all Company A management staff however the information contained within the email, was not given to the Respondent at this time. The Framework notice outlined that as of the 1st September 2017, there was a new framework for the delivery of Agency services for each of the five categories of employee. For Each category there was a principle supplier and four secondary suppliers. The Principal Supplier for Health Care Assistants was a new company (Company B).

Naturally staff began discussing this amongst themselves, and over the course of the next few weeks, management became aware from staff that the framework was in place. Staff explained to Management that as of the 1st of September 2017 they could no longer work for the Respondent in Company A.

The Respondent through a local Manager attempted to seek clarification from the Company A as to what the current situation was in relation to the staff. The local Manager wrote to the Company A informing them that the Respondent has been supplying Health Care Assistants to only one particular Hospital since 2014 and as of the 16th August 2017, Company A had not provided any notification to the Respondent, to date.

E-mails were sent to the Company A on the 16th August 2017, again on the 25th August, 2017; However, in addition to the e-mails numerous attempts were made to contact Company A to seek clarification as to what was happening, with the staff and whether or not notification had been sent to the Respondent.  

The Respondent contacted the Company A on or about the 30th August, specifically Company A’s Operations Manager and a conversation was had, whereby the Operations Manager explained to a Manager of the Respondent that Company A was now contractually mandated to use Company B as from the 1st September, 2017. The Manager was informed that as of the 1st September 2017 the provision of the supply of Health Care Assistants was to transfer to Company B. There was no official clarification as to who was supplying or what staff were working the following day.

On or about the 1st September 2017 Company B took over the supply of the Health Care Assistants to the Hospital in question.

My current /new employer (Transferee) did not ensure that my terms and conditions transferred from my previous employer (Transferor).

Section 2 (1) of S.I. No. 131/2003 European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003 defines Transferee as:

…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;

From the meaning of the term as outlined in the Regulations the respondent in this case is not the transferee.

Employee representation was not preserved or arranged by the current/new employer (Transferee) following the transfer of the business.

Section 2 (1) of S.I. No. 131/2003 European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003 defines “Transferee” as:

…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;

From the meaning of the term as outlined in the Regulations the respondent in this case is not the transferee.

The new/current employer (Transferee) did not inform employee representatives or certain details of the Transfer

Section 2 (1) of S.I. No. 131/2003 European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003 defines “Transferee” as:

…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;

From the meaning of the term as outlined in the Regulations the respondent in this case is not the transferee.

The new/current employer (Transferee) did not consult in relation to the transfer

Section 2 (1) of S.I. No. 131/2003 European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003 defines “Transferee” as:

…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;

From the meaning of the term as outlined in the Regulations the respondent in this case is not the transferee.

I was unfairly dismissed, I have at least 12 months service.

Section 5(1) of S.I. No. 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 states:

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 Position of the Respondent is that the Complainant was not unfairly dismissed. It is the understanding of the Respondent that most of the employees have taken up employment with the incoming contractor, or the Company A directly. It is our understanding that Complainant herself is now employed with a particular Hospital. However, it is our position that the Complainant was subject of a transfer of undertakings within the meaning of the regulations.

The European Court of Justice (ECJ) held in P Bork International A/S (in liquidation) v Foreningen af Arbejdsledere I Danmark:

[I]t is appropriate to take account of all the factual circumstances surrounding the transaction which may include in particular whether the tangible assets have been transferred as well as a major part of the staff of the undertaking, the degree of similarity between its activities before on after the transfer and the duration of any period of stoppage connected with the transfer. The fact that the undertaking was temporary closed and did not have any employees at the time of the transfer was a factor to be taken into consideration for the purpose of determining whether an economic entity which was still in existence of a transfer with the meaning of Article 1(1) particularly in a situation such as the present case in which the undertaking ceased its operations for only a short period which coincided with the end -of -the-year holidays.

While the facts in P Bork are slightly different the principle enunciated by the ECJ is relevant. That is to say that it is appropriate to consider all the factual circumstances surrounding the transaction which may include. In this case the relevant surrounding Circumstances are that due to the Client (Company A) and the nature of the events as outlined in the supplementary submission that makes this a transfer of undertakings according to the Regulations.

I did not receive my statutory minimum period of Notice on the termination of my employment or payment in lieu thereof.

It is the position of the Respondent that the Complainant was not entitled to Notice under the Minimum Notice & Terms of Employment Act 1973, as the Complainant’s employment was not terminated. The Complainant’s employment and all the respondent’s rights and obligations arising from the contract of employment transferred to the current/new employer (Transferee).

I did not receive my redundancy payment.

It is the Position of the Respondent that the Complainant’s position was not made redundant within the definition set out in Section 7(2) of the Redundancy Payments Act, 2003 as the employment was a transfer of Undertakings in line with S.I. 131/2003 European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003.

There are a number of issues in this case that need to be dealt with in a particular order to establish the decisions to be made by the Adjudicator in relation to each claim. 

Firstly, was the activity of the Respondent an economic entity and if so was there a Transfer of Undertaking between the Respondent and Company B?

If the answer to both of the above is yes then the claims by the Complainant under the lack of information, Consultation and infringement of Employee Representation Rights require decisions.

If the answer to either of the above questions is no, then as no Transfer of Undertaking having taken place then the issue of how the employment of the Complainant ended, whether it was a redundancy or dismissal, fair or unfair, needs to be decided. If the Complainant was made redundant or dismissed, then the issue of notice needs to be decided.

It is well established that each case regarding a Transfer of Undertaking must be viewed on the particular facts of the instant case with cognisance of the Directive and legal precedents. As both parties had common case that this was an economic entity I will not delve into this issue in detail as I concur with the view that the Activity was an economic entity and the core issue then to be resolved is whether a transfer of undertaking from the Respondent to Company B took place.

The aim of the Regulations is to safeguards s the rights and entitlement of employees arising from the employment relationship when the business or part of the business transfers from one employer to another. The Court of Justice has consistently stated that the decisive criteria for establishing the existence of a transfer is whether the entity in question retains its identity as indicated by the fact that its operation is actually continued or resumed.

In this instant case the Respondent was providing staff to a third party for the provision of Health Care services. The Respondent, who is an extremely large national employer in another sector, does not engage in this activity of providing Health Care staff with any other third party and was doing the Third Party “a favour” by providing the service. When the Third Party decided nationally to limit the provision of Heath Care services to a particular number of Agencies in defined geographical regions the Respondents contract with the Third Party ceased by operation of it non being a selected Supplier. It should be stated the Respondent did not bid for to be a selected Suppler for the Heath Care Services in the region.

The Third Party (Company A) in its memo nationally, dated September 4th 2017, to all management staff involved in the provision of Health Care staff did not select one particular Agency in the Complainants region for the supply of Health Care staff. Instead it states “This is a Multi Suppler Agency Framework-There will be one Principal Supplier for each Category in each Lot as well as up to four second tier suppliers for each category in each Lot”. In this case four named companies were designated Second Tier suppliers. 

Therefore, if Company B were not able to supply staff any of four other companies could provide staff. It follows then that the economic entity of the Respondent did not transfer intact to Company B. This position is also supported by the fact that many staff of the Respondent were directly employed by the Third Party (Company A) on the date of the contract cessation, some were employed by Company B, at various times, through a normal recruitment and hiring process and some went elsewhere. 

There is clear evidence that the unit in which the Complainant worked for the Respondent was an “economic entity” in its own separate right to all the other Respondent activities. This is further evidenced by the fact that the Respondent did not give any consideration to transferring the Complainant, or any other staff involved in the economic entity, into its core operations at the Third Party or any of its other operations.

In this case the Respondent held no discussions with Company B regarding any transfer of assets , staff or “economic entity”. No assets or good will transferred. Security of tenure or provision of the contract was not guaranteed as Company B was only one of five potential suppliers to Company A. Employees “dispersed” in a number of directions and those who were subsequently employed by Company A had to apply for their job, be interviewed and pass any training required for the posts.

In correspondence from the Respondent to the Complainants Union Representative on September 8th, 2017 it stated, “I had discussions with the Deputy General Manager (of the Third Party) last week who understood the situation and has agreed to work with us and the agency to ensure all staff are provided positions if they so wish with one of the new providers”. It is clear from this communication that the Respondent was of the view that no Transfer of Undertaking was taking place to one particular Supplier and that multiple Suppliers were involved in the new contractual relationship and the Transfer of Undertaking argument put forward by the Respondent in this case may be a convenient argument for it to avoid its legal responsibilities to the Complainant on cessation of her employment.

Indeed in further correspondence to SIPTU dated September 8th 2017 the Respondent stated that “every effort is being made to accommodate all staff affected, Mr J has completed reference requests for all staff and for Company B and a number of them have commenced employment with Company B and have requested P45’s. I can also conform that approximately 8 staff have applied for internal positions within the (Third Party) and are on the panel but in the interim have taken up employment with Company B or are awaiting clarification from Company B”. Given that in the unique instance of this case, on the basis of the above analysis and using the Labour Court decision in TUD1713 as guidance on the matter I find that no transfer of undertaking within the meaning of the Regulations did occur in September 2017 and the Complainant had no entitlement to transfer from the Respondents employment to Company A and claim reference number Ca-00016905-001 is not well founded.

As a result of the above decision the requirement for information, consultation and representation rights under the Directive do not apply and I find that claim reference numbers CA-00016905--004, CA-00016905-005 and CA-00016905-007 are not well founded.

The Respondent made the case that they had no case to answer in relation to the Complainant as it was not the Transferee, as it was identified as in the Complainants claim form. While the issue of the Respondent being described as the Transferee in the claim form when in fact it was the alleged Transferor is registered mute by the decisions which find no Transfer of Undertaking has taken place, the mistaken identification of the Respondent in the body of the claim form as the Transferee would not have rendered the claim under the Transfer of Undertaking in its entirety null and void as the correct parties were identified as the Respondents in the claim form and the claim presented at the Hearing had the parties identified in the correct order. 

The next question then is whether the Complainant was either unfairly dismissed or made redundant. The Respondent had “substantial grounds “for terminating the Complainants employment as a result of their contact to supply Heath Care Assistants to the Third party being terminated as they did not bid for the contract to become a principal Supplier or a Tier 2 Supplier.

Therefore, under the definition in Section 6.1 of the Unfair Dismissals Act 1977 which states” Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” the claim for Unfair Dismissal is not well founded as the Respondent had “substantial grounds” for terminating the Complainants employment as its contract with the Third Party was terminated and claim reference number under the Unfair Dismissals Act 1977, CA-00016905-011 is not well founded. 

Section 7 of the 1969 Redundancy Act states the following;

It is clear from the circumstances of this case that Section 2 (a) and (b) above of the Redundancy Act 1969 applies to the Complainant. Therefore, the claim for Redundancy, CA-00016905-013 is well founded and I award the Complainant the statutory redundancy of two weeks per year of service (or part thereof) plus a week subject to.

Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”

With regard to claim reference number CA-00016905-012 under the Minimum Notice and Terms of Employment Act 1973 I find that the Complainant was entitled to two weeks’ notice under section 4 .2 (b) of the Act and I find this claim well founded and award her two weeks’ notice pay.