Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Distribution company

Representatives

SIPTU

Ken Stafford Management Consultancy Services

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-00009262-002

24/01/2017

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-00009262-004

24/01/2017

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-00009262-009

24/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00009262-010

24/01/2017

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

CA-00009262-011

24/01/2017

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-00003964-001

20/04/2016

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-00003964-003

20/04/2016

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-00003964-004

20/04/2016

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-00003964-005

20/04/2016

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-00003964-006

20/04/2016

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-00003964-008

20/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00003964-010

20/04/2016

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

CA-00003964-011

20/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00003964-012

20/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00003964-013

20/04/2016

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-00003983-001

21/04/2016

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-00003983-003

21/04/2016

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-00003983-004

21/04/2016

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-00003983-005

21/04/2016

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-00003983-006

21/04/2016

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-00003983-008

21/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00003983-010

21/04/2016

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

CA-00003983-011

21/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00003983-012

21/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00003983-013

21/04/2016

There was a transfer of undertaking to the respondent in ADJ 7776 on October 28th 2015 and the complainant continued in employment until about a year later when another transfer took place.

The complainant transferred on both occasions. However, she has been on certified sick leave since August 2016.

All complaints numbered CA-00003983 and CA-00009262 above were withdrawn at the hearing as they duplicated the complaints numbered CA-0003964.

The complaints are as follows.

The first group of complaints arise under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003);

CA-00003964-001 and 003 relates to the failure to transfer the complainant’s terms of employment on the same basis as they had been with the transferor. The transferee failed to transfer the complainant on the same terms as she enjoyed with the transferor and therefore breached Regulation 4.

These changes were acknowledged by the transferee HR Manager at a meeting in December 2015 but were told that they would not be reverting to their previous terms of employment.

This was followed in January 2016 by a reduction in the complainant’s hours to two or three days per week with a reduction in income of up to sixty percent.

CA-00003964-004 relates to the constructive unfair dismissal (under the TUPE Regulations) and was withdrawn in favour of CA-00003964-011 under the Unfair Dismissals Act 1977.

CA-00003964-005 relates to the alleged breach of Regulations 7 in respect of the continuity of representational arrangements. For example, the respondent failed to answer correspondence from the complainant’s trade union and discontinued the deduction at source facility for union subscriptions,

Complaints CA-0003964-006 and 008 relate to breaches of Regulation 8 and the respondent’s failure to comply with the information and consultation requirements. There is an obligation to inform employees representatives affected by the transfer ‘not later than 30 days before the transfer is carried out’ regarding their conditions of employment. This obligation falls on both the transferor and transferee.

CA-00003964-011 is a complaint under the Unfair Dismissal Act for constructive unfair dismissal.

Following the Christmas period, the respondent introduced a three day week with obvious consequences for the complainant’s earnings. She raised this with her supervisor who spoke vaguely about a restoration to a full working week in March. She was told that she was lucky to have a job.

There had been other changes. She was invited to sign a new contract with changed terms of employment, workplace facilities were removed or downgraded.

Under the ‘contract test’ an employee is justified in resigning where there has been a significant breach of the contract by the employer which goes to the root of the contract.

Equally, under the ‘reasonableness test’ the list of changes imposed by the respondent were sufficient to justify her resignation. No attempt was made by the employer to resolve these difficulties and she was left with no choice but to resign.

She tendered her resignation on March 3rd 2017 as she could no longer afford to endure the reduced income.

Other complaints relate to changes in starting times and failure to provide statutory notice of working hours, CA-00003946-012 and 013, under the Organisation of Working Time Act.

In respect of the changes in working time the complainant’s main concern is the inadequate notice given in all cases

Complaint CA-00003964-010 arises under the Employment Equality Act and is based on the gender ground.

The transferor repeatedly treated a male comparator more favourably in many respects.

He was given preferential treatment in that he was not required to clock in or out, was given overtime and work previously carried out by the complainant and put in a supervisory position over her and had his hours preserved when the complainant’s were reduced.

In summary the complainant says that sections 4, 7, and 8 of the Transfer of Undertakings Regulations have been breached and that maximum compensation of two years’ salary for the breach of Regulations 4 and 7 should be awarded and four weeks compensation for breach of the information and consultation regulation in the amount of €1752.

The complainant seeks compensation also for the breach of the other Acts as outlined

In respect of ‘the first group of complaints’ the respondent sets the scene by saying that the transfer took place in a context of extreme trading difficulty; and without immediate action of the sort which did take place the transferor would have ceased trading and the complainant, and her co-workers would have lost their jobs.

The transferor had accumulated losses of over one million euros in the previous two years and was insolvent. It went into receivership on November 4th and the process of the transfer was effected within twenty-four hours.

Therefore. while it is accepted that there was no consultation or information period this was because of the exceptionally bad trading situation in which the transferor found itself.

The respondent denies that the terms of employment changed.

A new contract was proposed in February 2016 four months after the transfer and it is perfectly entitled to do this. The arrangements for sick pay remained as they had been in the previous contract, and the reduction to a three-day week was for a brief period in January 2016 only.

The respondent did not withdraw trade union representation rights. The union sent correspondence to a wring address which was never received by the respondent.

Regarding the complaint of unfair dismissal, no attempt was made by the complainant to raise this formally through the company grievance procedure. She was a member of a trade union and could have raised it through her union, but she did not do so. The complainant gave evidence that the matter was under discussion up to February 16th and it was well known that this was a seasonal dip that would be corrected in March when demand in the industry improved as it was expected to in March. The complainant was made aware of this.

The complainant left to take up another position with the first transferor and incurred no financial losses.

Regarding the complaint under the Equality Act, the respondent complains that it received no prior information of the complaint which was going to be made at the hearing as is required under the Act.

In any event the respondent says that the named individual is not a valid comparator. He is paid at a higher level and is in a different grade. He gets a meal allowance which is payable to truck drivers only and he is paid commission. He was not even in the same department as the complainant.

He was not, as alleged given a wage increase although the respondent did negotiate a new wage structure for its drivers.

Time sheets offered in evidence showed that the comparator travelled and did differing types of work and he did not have the same duties as the complainant. He was primarily a driver while the complainant was a warehouse picker.

The respondent denies that the comparator was given any position of authority over the complainant, but he was a keyholder.

Likewise, it is denied that he got preferential access to Saturday working.

In respect of the differential treatment regarding the reduced working hours the comparator’s hour were not reduced because he was a driver and the ‘runs’ had to be done any even if there were lighter loads; the need to temporarily reduce hours arose only in the warehouse.

Any difference in treatment of the complainant arose because her role and job were fundamentally different, and the complainant has not made out a prima facie case.

There was a possible male comparator in the same role as the complainant who, oddly has not been chosen for the purposes of the complaint

This was an extremely difficult hearing to manage, due in no small measure to the obvious duplication of complaints (which was replicated in respect of cognate complainants). In respect of this complainant there were five distinct ADJ listings and a total of nearly seventy complaints; many if not most of them duplicated.

Apart from any other consideration a respondent is entitled to be on clear notice of the complaints s/he must address at the hearing.

While the primary responsibility to fulfil the consultation and information obligations will normally fall on the transferor before the transfer takes place (although there is a legal liability on both transferor and transferee) liability for the failure to do so will pass to the transferee and is therefore validly a matter for this respondent.

The respondent did not dispute the failure to comply with the information and consultation requirements and pleads in mitigation a sort of commercial ‘force majeure’ which required immediate action to keep the business running and to preserve employment, which it succeeded in doing. (Complaints CA-00003964-001 and 003).

It expresses surprise that it should have been pursued in this way by a small number of employees, despite offering them continuing employment.

Most cases involving breaches of this sort arise from situations where problems arise after the transfer, redundancy or other serious changes to the employee’s contract.

In this case the complaint arises from a revised contract of employment presented to the complainant on (or in any event dated) February 15th 2016. It has all the appearance of a generic document customised for the respondent. This may explain some of the more obviously ridiculous terms, such as the insinuation of a probationary period for, in this case an employee who had eight years’ service.

Other changes related to the possibility of relocation, uncertainty about starting and finishing hours etc. Some were relatively minor relating to the provision of tea, water, and toilet paper.

The complainant did not sign this contract and as a matter of law, until they are changed with the complainant’s consent the terms of her previous contract apply, (noting that not all of the above may be considered contractual terms.)

She communicated this to the respondent on February and there the matter lay.

The reduction in earnings resulted from a temporary period of short term working.

The complaints relating to the information and consultation requirements are CA-00003964-006 and 008. These were clearly not complied with and these are upheld.

In general, it seems the respondent carried over the complainant’s contract to a very large extent and this must have some bearing on how I approach the matter of compensation.

CA-00003964-005 relates to the alleged denial of trade union representation and seems to have been based on the failure of the respondent to reply to correspondence which it says it did not receive. There is also an issue about deduction of trade union subscriptions at source.

The respondent indicated that it had no difficulty in continuing to deal with the union and I do not accept that the respondent terminated the representational entitlements of the trade union and the issues arising here seem to be as much to do with communications. I do not uphold CA-00003964-005.

As noted above it appears also that the employees did transfer largely on the basis of their previously existing terms and conditions of employment. There is no requirement that the terms at the point of transfer remain set in stone for ever; a transferee will, in due course have the same rights as the transferor would have had to vary conditions of employment subject to the appropriate requirements for consultation and agreement.

The complaint in this case is that hours were reduced for a brief period some months after the transfer as a result of adverse trading conditions and that a new contract issued on February 25th, 2016, three months after the transfer had variable starting times. There was also a claim for the loss of a very small amount of overtime. These are complaints CA-00003964-001 and 003 and these are not upheld. The company had very significant losses (stated at around one million euros) and in such circumstances even had the transferor remained in ownership some such measure would have been likely.

Related complaints are made under the Organisation of Working Time below.

I do not consider these to be breaches of the regulations.

CA-00003964-011 is the complaint of constructive unfair dismissal.

In such cases the critical issue is, as submitted by the complainant, the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The Supreme Court has said that

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

Dr. Mary Redmond has noted;

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.

Dismissal Law in Ireland p34

This has been considered in may decisions such as Kirwan v Primark (UD 270/2003) where the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures, and Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant do not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

In Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the following appears.

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.

The impact of the reduced earnings is not in dispute.

The first question is whether this is sufficient to meet the tests in the case law above and in particular the requirement that a complainant raise their concern through the grievance machinery.

She stated in evidence that she mentioned it to her supervisor, but this is not sufficient. She did not raise it with her union and while there were some difficulties with the local representative this did not prevent her from contacting a full-time official.

In reality, it appears that she got another (and according to the respondent better paid) job and devised to leave. This does not remotely meet the requirements set out above and this complaint fails.

Therefore, this complaint does not succeed as it is not well founded.

In relation to complaint CA-00003964-010 under the Employment Equality Act I find that the complainant has not made out a prima facie case. The supposed comparator was employed in a different role and set of terms and conditions of employment.

Her complaints of less favourable treatment simply ignore these distinctions.

The comparator was primarily a driver and some of his specific conditions reflected this (a meal allowance). It is noteworthy that the complainant could have but declined to select a comparator who was at her own grade.

Accordingly, this complaint is not upheld.

CA-00003964-012 and 013 arises from the failure of the respondent to give the complainant twenty-four hours’ notice of her working hours. While the complainant accepted the changes she was not happy about the short notice.

I accept the complainant’s submission on this point and this complaint succeeds.

I uphold complaints CA-0003964-006 and 008 under the Transfer of Undertakings Regulations and award the complainant €750. I uphold complaints CA-0003964-012 and 013 and award the complainant €850.

I do not uphold complaints CA-00003946-004, 003, 004, 005, 010 and 011 for the reasons set out above.

All complaints numbered CA-00003983 and CA-00009262 were withdrawn at the hearing.

TUPE, Equality, constructive dismissal