Complainant

Respondent

Anonymised Parties

An Officer

A Third Level College

Representatives

SIPTU

Ronan Daly Jermyn 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-00012068-001

22/06/2017

The complainant was employed by Organisation A which had in place what was referred to as by her as collective agreement, hereinafter referred to as Agreement X.  The complainant’s employment transferred to Organisation B, through which the EC Protection Employees on Transfer of Undertakings) regulations 2003 (TUPE) applied. Her employment later transferred to the Organisation C (the respondent). The complainant claims that the terms of Agreement X, should have been applied by the respondent.

In 2010 Agreement X existed at Organisation A which included pay reductions and details on when pay might be restored.

On 1st January 2013 the complainant transferred from Organisation A to Organisation B under TUPE.

It was detailed that Agreement X would apply to all employees transferring from Organisation A to Organisation B and this was confirmed by ICTU.

On 1st August 2015 the complainant transferred from Organisation B to Organisation C (the respondent) under TUPE.

SIPTU made the respondent aware of Agreement X which was subject to a conciliation conference in January 2016 to which the respondent advised that Agreement X was not live at the time of the transfer as the required terms of Agreement X had not been achieved.

In May 2016, Organisation A implemented pay increases through a lump sum payment following a Labour Court Hearing (LCR 20997) in relation Agreement X and Organisation B also applied same.

Discussions took place with Organisation C, however, the respondent to date has not paid the lump sum which applies to Agreement X.

In response to the preliminary issue that the claim was out of time, the complainant denied same. It was put forward that it was disingenuous of the respondent to advise that they were not going to honour the claim when all discussions had been around how the agreement was to be implemented and not about if the agreement was to be implemented.

In response to the respondent’s argument that it was a new agreement that was in place, the complainant disputed this and outlined that Organisation B had accepted that it was an existing collective agreement and had implemented same and that the respondent had an obligation to do the same. Case law cited included Werhof v Freeway Trafficef Systems GMBH & Co (C-499/04).

Preliminary Issue

The respondent raised that the issue was out of time.

The claim was initiated by way of submission of the claim on 22nd January 2017. It was proffered that the date of the alleged offence could be deemed to be one of a number of dates but that regardless of which date was utilised, the claim was out of time.

Suggested dates offered included the date of the TUPE, namely 1st August 2015 which meant the claim was out of time.

If the date of 20th May 2016 was utilised, when the new agreement was reached, the claim was also out of time.

If the date when the respondent formally advised that they would not be applying the lump sum was to be utilised (26th May 2016) the claim was out of time.

Without prejudice to the above, while it was accepted that an Agreement had been created with Organisation A and their employees regarding restoration of pay levels dependent on targets; it was outlined that this agreement was no longer in existence and had been replaced by a separate agreement which the respondent had not been party to.   Furthermore, the decision of Organisation B to implement back payment was a decision of organisation B and the respondent was not obliged to do the same.

It was also put forward that the Agreement had no application in the new sector which the complainant had transferred to as it was a sector completely unrelated to the sector of the respondent and that it would make no sense to link future earnings of an employee in a sector unrelated to their current sector.

The respondent outlined that the complainant was a valued employee who had been treated fairly at all times including receipt of accelerated public pay restoration and eligibility for future benefits and that as a result of the TUPE she was on better terms and conditions.

Case law cited included Werhof v Freeway Trafficef Systems GMBH & Co (C-499/04).

The claim is that the complainant is seeking the implementation of what she deems the terms of a collective agreement and which is namely a lump sum payment as a result of a Labour Cout Hearing ( LCR 20997).

Three days were allocated for the hearing of this complaint during which time parties were given an opportunity to come to a resolution owing to the nature of the complaint and the number of other complainants who have submitted similar complaints.  

A large number of issues arose with regards to this claim including whether as a preliminary issue the claim is out of time; was a collective agreement in place at the time of the transfer and, if so, whether what the complainant is seeking is terms of a ‘new’ collective agreement and which the respondent claims they were not party to and therefore, they are not obligated to honour such an agreement. It was also detailed that the complainant has already acquired terms and conditions more beneficial as a result of the transfer and that no further obligation remains with the respondent.

It is accepted that an agreement referred to as Agreement X applied to employees at Organisation A and that this was regarded by ICTU as a collective agreement in December 2012, prior to the transfer between Organisation A and B on 1st January 2013.

It was also accepted that the Agreement was the subject of a Labour Court hearing attended by Organisation A which resulted in a recommendation (LCR20997) dated 26th May 2015.

It was accepted that a TUPE took place between Organisation B and Organisation C (the respondent) on 1st August 2015. It was also accepted that the complainant, through her union, referred the matter on 22nd January 2017 to the WRC.

Regulation 10 of the Regulations state:

 “(5) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely: (a) declare that the complaint is or, as the case may be, is not well founded, (b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable in the circumstances, but - (i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and, (ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration, in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977.”

Subsections 6 and 8 of Section 41 of the Act of 2015 state:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

…

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

Regulation 10 requires complaints to be referred to the WRC within six months of the date of contravention. A contravention could arise on the date of transfer or on some later date. The six-month limitation period begins from the date the alleged contravention takes place (and not the date of the transfer) and this could occur sometime after the transfer.

I find that the lump sum payment was communicated to members on 20th May 2016 with an effective date of 1st July 2016, to be applied retrospectively from 1st January 2016.

There have been a number of dates put forward from which the six-month limitation period might begin, namely what is the date that the alleged contravention takes place? It has been suggested that these include: 1st August 2015 (date of the transfer to the respondent) or 1st January 2016 (the date the agreement was applied retrospectively) or 20th May 2016 (the date the restoration of pay levels under Agreement X was communicated) or 27th May 2016 (the date the respondent detailed “the “Agreement” no longer applies or is relevant”) or 1st July 2016 (the date that the agreement was to apply from). Taking the latest date of 1st July 2016, which having reviewed the evidence is the date I determine to be the date of alleged contravention; this is outside the six-month limitation period.

The established test for deciding if an extension of time should be granted, as requested by the complainant, is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338.   In this case, the test for reasonable cause for extending the time limit to 12 months, was set out as follows:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say, it must make sense, be agreeable to reason and not be irrational or absurd.   In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present, he would have initiated the claim in time.”

For an explanation of “reasonable cause” to succeed therefore, the complainant must

Explain the delay and afford an excuse for the delay;

The explanation must be reasonable;

There must be an objective standard, applied to the circumstances of the case;

There must be a causal link between the circumstances and the delay;

She must show that, if the circumstances were not present, she would have submitted the claim.

In Minister for Finance v CPSU and Ors[2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.” While it was not suggested that the complainant did not know of the time limits, it was suggested that the respondent’s initial engagement in the process may have somehow given the complainant a false sense that they were accepting of the Agreement, there was nothing that prevented the complainant submitted the claim even if negotiations and talks were ongoing. I find therefore, that she has NOT been able to show reasonable cause to extend the above time limit.

I am not satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause and therefore I cannot entertain a complaint referred to after the expiration of the period of 6 months.   I have no jurisdiction to hear it.

TUPE, Collective Agreement, Out of time,