Complainant

Respondent

Anonymised Parties

A Créche Manager

A Créche

Representatives

Mr. Eamonn Gibney, The HR Department

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018570-001

18/04/2018

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

CA-00018570-002

18/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018570-003

18/04/2018

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

CA-00018570-004

18/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018570-005

18/04/2018

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-00018570-006

18/04/2018

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-00018570-007

18/04/2018

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-00018570-008

18/04/2018

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-00018570-009

18/04/2018

The Complainant was employed by the Respondent, Ms. A, as a Crèche Manager between May, 2016 and 6 April, 2018 when her employment was terminated. The business which employed the Complainant was transferred from the Respondent, Ms. A (the Transferor) to Mr. B (the Transferee) by way of a transfer of undertakings on 9 April, 2018.

The Complainant claims that she was unfairly dismissed by the Respondent, Ms. A, as a result of a transfer of undertakings of the business to a new entity.

The Complainant claims that the Respondent made an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to payment in lieu of notice.

The Complainant claims that the Respondent has contravened the provisions of Regulations 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 in relation to the transfer of her terms and conditions of employment arising from the transfer. The Complainant also claims that the Respondent has contravened these Regulations in relation to the provision of information in writing regarding the transfer of undertakings and matters pertaining to her terms and conditions of employment.

The Complainant claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act 1994 by failing to provide her with a written statement of her terms and conditions of employment.

The Complainant also claims that the Respondent has contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 in relation to her entitlement to rest breaks.

The Respondent disputes the claim under the Unfair Dismissals Act 1977 and contends that the Complainant resigned of her own volition prior to the date of the transfer of the business and disputes the claim that she was dismissed, either unfairly or otherwise.

The Respondent disputes the claim that it made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to payment in lieu of notice.

The Respondent denies that it has contravened any of the Regulations under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 in relation to the Complainant’s employment.

The Respondent disputes the claim that it has contravened the provisions of Section 3 of the Terms of Employment (Information) Act 1994 regarding the provision of a written statement to the Complainant in relation to her terms and conditions of employment.

The Respondent also disputes the claim that it has contravened the provisions of Section 12 of the Organisation of Working Time 1997 in relation to the provision of rest breaks to the Complainant.

The Complainant also referred a complaint against the Transferee under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 arising from the transfer of the business from Ms. A to Mr. B and the decision in this case is dealt with in Adjudication Reference No. ADJ-00005302.

CA-00018750-001- Complaint under the Payment of Wages Act 1991

The Complainant claims that she did not receive payment in lieu of notice when her employment was terminated by the Respondent on 6 April, 2018. The Complainant claims that the Respondent’s failure to make this payment in lieu of notice constitutes an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act, 1991.

CA-00018750-002- Complaint under the Organisation of Working Time Act 1997

The Complainant contends that the Respondent has contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 in relation to its failure to provide her with the required rest breaks.

The Complainant submits that her contractual working hours at the crèche were 8:30 am to 2:30 pm Monday to Friday each week. The Complainant claims that during this period no provision was made by the Respondent for her to take a rest break of 15 minutes after the first 4 hours and 30 minutes that she worked each day. The Complainant contends that when she approached the Respondent, Ms. A, about this, she was told that there was not enough cover available for her to take rest breaks and that she could not afford or justify the cost of additional cover for her to take rest breaks.

CA-00018750-003 - Complaint under the Terms of Employment (Information) Act 1994

The Complainant claims that the Respondent failed to provide her with a written statement of her terms and conditions of employment contrary to Section 4 of the Terms of Employment (Information) Act 1994.

The Complainant contends that the written statement she received from the Respondent was a blank template that she used in her role as Manager to provide contracts to other staff members employed at the crèche. The Complainant contends that in or around September, 2017 she asked the Respondent to complete and issue her with a contract as opposed to drafting her own. However, this request was ignored by the Respondent and she claims that no contract was subsequently issued to her.

CA-00018750-004 - Complaint under the Unfair Dismissals Act 1997

The Complainant contends that she was unfairly dismissed from her employment as a result of the Respondent transferring the business to another entity (Mr. B). The Complainant submits that her dismissal was unfairly orchestrated as a result of the Respondent’s behaviour and conduct in handling her contractual terms prior to the transfer of the business and what was perceived to be her contractual terms post-transfer.

The Complainant claims that matters pertaining to her terms and conditions of employment pre-transfer and post-transfer (i.e. consultation) were only addressed at a meeting in the afternoon on 6 April, 2018 when her shift ended at 2:30 pm. This meeting was held three days prior to the transfer of the business on Monday, 9 April, 2018 and was attended by the Respondent, Ms. A and the Transferee (Mr. B). The Complainant claims that the following events occurred at this meeting:

·         The Complainant handed a letter to the Transferee (Mr. B) which outlined her existing terms and conditions of employment with the Respondent as she was concerned that not enough attention had been afforded to her situation as the transfer date was imminent.

·         The Complainant had a discussion with the Transferee (Mr. B) regarding the proposed changes to her terms and conditions of employment. The Complainant claims that she was informed by Mr. B at this meeting that there would be a number of changes to her terms and conditions of employment following the transfer of the business, namely that: her role as Manager of the crèche would cease as Mr. B would assume that role once the business transferred; she would have to work a back week before receiving payment of wages; her entitlement to three paid sick days in any one year would cease; her Christmas bonus of €500 which had been routinely paid every year would cease: the crèche facility space for her infant child that was provided free of charge by agreement with the Respondent would cease and she would be required to pay for this facility from the date of the transfer (on 9 April, 2018): she was given no indication that her daily rest break entitlement going forward would be allowed to reflect the 4.5 maximum hours worked rule.

·         The Complainant was subjected to bullying by the Respondent, Ms. A at this meeting who accused her of hiding her contract of employment, a contract that she was never given. She attempted to inform Ms. A and Mr. B at the meeting that she had not been provided with a written contract, but her efforts fell on deaf ears.

·         The Respondent, Ms. A, prevented her from leaving the room (with her child in her arms) by placing her foot at the door and stating that she could not leave until she produced her contract of employment. This treatment by the Respondent was highly upsetting and stressful for the Complainant and she found herself having to ask Ms. A to “please get out of my way” so that she could leave the room.

The Complainant contends that she received an intimidatory text message from Ms. A on 7 April, 2018 regarding her non-existent contract of employment. The Complainant submits that she informed Ms. A by return e-mail that she was not in a position to transfer to the employment of Mr. B (the Transferee) as a result of the proposed less favourable changes to her terms and conditions of employment.   The Complainant indicated to Ms. A that she would be remaining in her existing employment until further notice.

The Complainant claims that on Monday, 9 April, 2018 she found her P45 among her child’s belongings that her husband had collected from the crèche late on the previous Friday. The Complainant sent an e-mail to Ms. A on 9 April, 2018 acknowledging receipt of her P45 and the intimidatory text from the previous Saturday and indicating that she would be referring the matter to the WRC.

The Complainant claims that she was dismissed by the Respondent, Ms. A, as a result of the transfer of undertakings and she contends that the manner in which her employment was terminated by the Respondent, Ms. A, amounted to an unfair dismissal within the meaning of Section 6(1) of the Unfair Dismissals Act, 1997.

CA-00018750-006 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The Complainant claims that the Respondent, Ms. A (the Transferor) has contravened the provisions of Regulation 4(1) of the Regulations by failing to ensure that her terms and condition of employment transferred to the Transferee and new owner of the business (Mr. B).

The Complainant submits that the amended terms and conditions of employment which she had agreed with the Respondent (Ms. A) prior to her return from maternity leave, in or around May, 2017, were changed on the transfer of the business to Mr. B (the Transferee). The Complainant contends that the following terms and conditions were agreed verbally with Ms. A at that juncture, namely:

·         That her hours would reduce to 30 hours per week (8:30 am to 2:30 pm Monday to Friday);

·         That she would continue in the role of Créche Manager;

·         That her rate of pay per hours would remain at €11 p/h;

·         That she would still be entitled to a Christmas bonus of €500;

·         That her infant child would attend the crèche free of charge if she returned to work after maternity leave in lieu of a pay increase.

·         As there was no discussion regarding the sick pay scheme or having to work a back week, it was assumed the existing terms remained the same.

The Complainant agreed to accept the amended terms and conditions on her return from maternity leave but did not receive anything in writing.

The Complainant submits that she was informed by Ms. A approx. two weeks prior to the termination of her employment that the business was being transferred to a new owner (Mr. B). The Complainant stated that she had an introductory meeting with Mr. B (the Transferee) which was also attended by Ms. A on 4 April, 2018. The Complainant made enquiries at this meeting in relation her terms and conditions of employment going forward and was informed by Mr. B (the Transferee) that he did not have any answers for her that day as it was only an introduction meeting.

The Complainant contends that the changes to her terms and conditions were communicated to her at a subsequent meeting held on 6 April, 2018 which was attended by Mr. B (the Transferee) and the Respondent, Ms. A. The Complainant contends that she was not given a new written contract of employment but was informed by Mr. B (the Transferee) that:

·         Her role as Manager of the crèche would cease as Mr. B would assume that role once the business transferred.

·         She would have to work a back week before receiving payment of wages.

·         Her entitlement to three paid sick days in any one year would cease.

·         Her Christmas bonus of €500 which had been routinely paid every year would cease.

·         The crèche facility space for her infant child that was provided free of charge by agreement with the Transferor would cease and she would be required to pay for this facility from the date of the transfer (on 9 April, 2018).

·         She was given no indication that her daily rest break entitlement going forward would be allowed to reflect the 4.5 maximum hours worked rule.

The Complainant submits that she received an e-mail from Mr. B (the Transferee) on Saturday, 7 April, 2018 in which he attempted to exonerate himself from the difficult meeting the previous day. The Complainant acknowledges that it was indicated in this e-mail that Mr. B (the Transferee) was prepared to offer her “the same contract as was previously in place with your colleagues”. However, the Complainant contends that her terms and conditions were different to her colleagues which was at variance with what was discussed at the meeting the previous day.

The Complainant replied to Mr. B by e-mail on 9 April, 2018 confirming that she would not be in a position to transfer to his employment as the material changes to her terms and conditions of employment were unacceptable.

CA-00018750-008 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The Complainant contends that she was informed by the Respondent, Ms. A, approx. two weeks before the transfer date of 9 April, 2018 that the business was being transferred to Mr. B. This information was communicated to the Complainant verbally and she did not receive any information in writing on any matters pertaining to the transfer.

The Complainant claims that the Respondent has contravened the provisions of Regulation 8 of the Regulations by failing to consult with her and to provide her with the required information in relation to the transfer of the business.

CA-00018750-001- Complaint under the Payment of Wages Act 1991

The Respondent disputes the claim under the Payment of Wages Act, 1991 and submits that the Complainant was not entitled to payment in lieu of notice on the termination of her employment as she resigned of her own volition on 6 April, 2018. The Respondent contends that it did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Act in respect of payment in lieu of notice on the termination of her employment.

CA-00018750-002- Complaint under the Organisation of Working Time Act 1997

The Respondent disputes the claim that it contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 in relation to the provision of rest breaks to the Complainant during her period of employment.

The Respondent submits that during the period the Complainant was employed on a full-time basis, she would have taken her one-hour lunch break and left the crèche every day. However, when the Complainant returned to work following maternity leave in June, 2017 and took up her new short time hours (six hours per day), she opted to have her one-hour lunch break on the premises with her infant son before completing her shift.

The Respondent submits that the Complainant, as Manager of the crèche, had been involved in implementing the policies and procedures and revised terms and conditions with staff in August/September, 2017, and therefore would have been well aware of her entitlements to rest breaks and had responsibility for ensuring that staff took rest breaks. The Respondent submits that the Complainant never raised any grievance during the period of her employment in relation to her rest break entitlements.

CA-00018750-003 - Complaint under the Terms of Employment (Information) Act 1994

The Respondent disputes the claim that it has contravened the provisions of Section 3 of the Terms of Employment (Information) Act 1994 by failing to provide the Complainant with a written statement of her terms and conditions of employment.

The Respondent submits that she engaged external consultants to ensure that the business was compliant with all its obligations under employment legislation and that this firm drafted a written contract for all employees at the crèche, including the Complainant. The Respondent submits that the Complainant, in her role as Manager, was fully involved in the process of completing contracts for staff members and that she signed a personnel file checklist in September, 2017 to confirm that she had received a written contract.

CA-00018750-004 - Complaint under the Unfair Dismissals Act 1997

The Respondent disputes the claim that the Complainant was unfairly dismissed from her employment.

The Respondent submits that the owner of the crèche, Ms. A, was experiencing health and financial issues during 2017 and sought to lease the business to another entity. The Respondent employed four employees at that juncture, including the Complainant (who was the Crèche Manager). The Respondent informed staff members (including the Complainant) about a possible takeover of the business in November, 2017 but subsequently decided not to proceed with the sale at that juncture due to concerns raised by staff in relation to the suitability of the potential purchaser. The Respondent submits that the Complainant was fully aware of the difficulties being experienced by Ms. A and in March, 2018 she had a discussion with the Complainant about the possibility of the business being taken over by Mr. B (the Transferee). Shortly thereafter, the Respondent informed the other members of staff that there was a possibility the business would be taken over by Mr. B due to the personal difficulties being experienced by Ms. A.

On 26 March, 2018, the Respondent e-mailed a letter to the Complainant for circulation to parents of the children attending the crèche to inform them about the pending change in ownership of the business and confirming that the transfer would take place on 9 April, 2018. The Respondent submits that the Complainant was fully aware that the transfer of the business was imminent and that she did not raise any concerns in relation to the transfer apart from initial concerns in relation to job security.

The Respondent submits that a conversation took place between the Complainant and Ms. A on 4 April, 2018 during which the Complainant asked Ms. A to say that she was letting her go rather than transferring her employment to Mr. B as this would suit her and allow her to avail of Social Welfare benefits. The Respondent submits that Ms. A received a telephone call from the Complainant later that day to request that her P45 be ready for collection at 2:30 pm the following Friday when she was due to finish work.

On 6 April, 2018, the Respondent, Ms. A, was having a meeting with Mr. B (the Transferee) and his wife on the premises of the crèche. The meeting was interrupted by the Complainant in an aggressive manner and she proceeded to present a letter to Mr. B outlining what she considered were her terms and conditions of employment. During this meeting the Complainant informed Mr. B that she no longer wanted the role of Manager and would not be transferring to the new entity the following Monday.

The Respondent tried to explain to the Complainant that some of the issues to which she had referred were not part of her existing terms and conditions of employment and therefore would not carry over following the transfer of the business. The Respondent left the meeting to get the Complainant’s personnel file to show her the contract of employment that was on file for her. However, the Complainant’s contract and that of another employee were missing from the filing cabinet. The Respondent had checked the file on 4 April, 2018 and there was a hard copy of the Complainant’s written contract on file and this had also been shown to Mr. B during a meeting on this date. When the Respondent returned to the room, she asked the Complainant if she knew anything about where her contract had gone but she became very agitated and stormed out of the room.

The Complainant left the premises and Ms. A received a phone call shortly thereafter from the Complainant’s husband who stated that he was calling on his wife’s behalf and demanded her P45. The Complainant’s husband was abusive and intimidatory during this telephone conversation and demanded that Ms. A drive to a specific town to deliver the P45 but she refused to do so. The Complainant’s husband arrived at the crèche later that day to collect her P45 and parked in the driveway of the premises thereby causing an obstruction to other parents who were collecting their children. The Complainant’s P45 was given to her husband by one of the other members of staff.

The Respondent submits that there was an exchange of correspondence between Ms. A and the Complainant over the next few days and the Complainant confirmed that she would not be transferring to the new entity and would be remaining in her current employment. The Respondent submits that the business was transferred to Mr. B by way of a transfer of undertakings on 9 April, 2018 and that the Complainant decided, of her own volition, not to transfer to the new entity. The Respondent contends that the Complainant was not dismissed from her employment and therefore the complaint under the Unfair Dismissals Act, 1977 is misconceived.

CA-00018750-006 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The Respondent disputes the claim that it contravened the provisions of Regulation 4(1) of the Regulations by failing to ensure that the Complainant’s terms and condition of employment transferred to the Transferor and new owner of the business (Mr. B).

The Respondent submits that the Complainant was informed by the Transferee (Mr. B) at a meeting on 6 April, 2018 and by e-mail on 7 April, 2018 that her employment would continue on the same terms and conditions following the transfer of the business. The Respondent submits that the Complainant chose, of her own volition, not to transfer to the employment of Mr. B (the Transferee).

CA-00018750-008 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The Respondent disputes the claim that it contravened the provisions of Regulation 8 of the Regulations by failing to consult with the Complainant and/or to provide her with the required information in relation to the transfer of the business.

The Respondent submits that the Complainant was fully aware since late 2017 that Ms. A was experiencing health and financial difficulties and that she was seeking to lease out the business to a new entity. In March, 2018, Ms. A had a conversation with Complainant about the Transferee (Mr. B) taking over the business and provided her with information in relation to his credentials. The Respondent submits that the Complainant was aware at that juncture of her intention to proceed with the transfer of the business. On 26 March, 2018, the Complainant e-mailed Ms. A with a copy of a letter which she proposed to circulate to parents to inform the ma bout the transfer of the business.

The Respondent submits that Mr. B had initiated her consultation obligations under the TUPE Regulations in November, 2017 when she informed staff, including the Complainant, about her decision to sell the business. The Respondent contends that staff were fully aware from that juncture onwards that Ms. A was unwell and was actively looking for a new lessee for the business.

CA-00018750-001- Complaint under the Payment of Wages Act 1991

Having regard to the totality of the evidence adduced, I find that the Complainant resigned from her employment of her own volition and therefore, was not entitled to statutory notice or payment in lieu thereof. Accordingly, I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act, 1991 in relation to payment in lieu of notice.

CA-00018750-002- Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent has contravened the provisions of Section 12 of the Organisation of Working Time Act, 1997 on the basis that she was not afforded breaks of 15 minutes when he worked for over 4 hours and 30 minutes.

Section 25 of the 1997 Act provides that:

Rests and intervals at work.

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 25 of the 1997 Act provides that:

(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.  

[…]

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act [Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before an adjudication officer or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

The Labour Court held in the case of Nurendale Ltd T/A Panda Waste and Andrei Suvac, DWT1419, that: - “In reliance on the terms of this contract the Respondent submitted that the Claimant was   obliged to take breaks and that if he failed to do so this was through his own choosing. The Court cannot accept that submission. In Antanas -v- Nolan Transport [2011] 22 ELR 311, having considered the decision of the CJEU in Case C-484/04, Commission -v- United Kingdom IRLR 888, this Court held that Directive 2003/88/EC, from which the Act of 1997 is derived, places a positive obligation on an employer to ensure that the breaks are actually taken and it is insufficient to merely provide that breaks can be taken. In this case, no evidence was tendered to the Court to show that the Respondent took any measures to ensure that the Claimant actually took the breaks to which he was entitled.”

In considering this matter, I note that it was not in dispute that the Complainant’s normal weekly working hours were from 8:30 am to 2:30 pm on Monday to Friday, which equates to six hours per day. The Complainant adduced evidence that the Respondent made no provision for her to take her rest break entitlement of 15 minutes after the first 4.5 hours worked during each of her working days.

Section 25(4) of the Act provides, in effect, that where an employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before an Adjudication Officer, the onus of proving compliance with that provision lies with the employer. In the instant case, I am satisfied that the Respondent has failed to maintain adequate records to show that the Act was complied with in respect of the Complainant’s rest break entitlements during her period of employment and thus carries the burden of rebutting the evidence given by the claimant.

I find that the Respondent has not adduced clear evidence that the Complainant received her rest break entitlements in accordance with the provisions of Section 12(1) of the Act during the material period in question. Accordingly, I find that the Complainant’s claim that the Respondent has contravened the provisions of Section 12 of the Act to be well founded.

CA-00018750-003 - Complaint under the Terms of Employment (Information) Act 1994

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

It was not in dispute that the Complainant re-commenced employment with the Respondent on 20 May, 2016. She had previously been employed during the period from May, 2013 to January, 2016 but left of her own volition at that juncture to take up alternative employment. Therefore, in accordance with its obligations under Section 3 of the Acts, the Respondent was obliged to provide the Complainant with a written statement of her terms and conditions of employment no later than two months from the date she re-commenced employment i.e. 19 July, 2016.

There was a dispute between the parties as to whether or not the Respondent provided the Complainant with a written contract of employment during the material period of her employment in question in the present case. Having regard to the evidence adduced, I accept the Respondent’s evidence that the Complainant was issued with a written contract of employment in July, 2017 after the Respondent engaged an external firm of consultants to prepare draft contracts for all of its employees. In coming to this conclusion, I have taken account of the evidence given by Mr. B (the Transferee) who confirmed that he had seen a copy of the Complainant’s written contract during the course of a meeting with Ms. A on 4 April, 2018 prior to the transfer of the business.

Notwithstanding my findings on this point, it is clear that this written contract was issued to the Complainant in July, 2017, which was clearly outside of the specified period provided for in Section 3 of the Act. Accordingly, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

CA-00018750-004 - Complaint under the Unfair Dismissals Act 1997

The Law

Section 6 of the Unfair Dismissals Act 1977, as amended, provides as follows:-

6.—(1) 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 fact of dismissal is in dispute between the parties in this case. Therefore, the question that I must decide is whether the Complainant resigned or was dismissed from her employment with the Respondent, Ms. A. In the event that I find she resigned then that is the end of the matter. However, if I decide that she was dismissed then the dismissal is, as a matter of law, deemed to be unfair unless there were substantial grounds justifying the dismissal.

The Complainant contends that her dismissal arose as a result of the Respondent transferring her business to another entity (Mr. B) and that her dismissal was unfairly orchestrated as a result of the Respondent’s behaviour and conduct in handling her contractual terms prior to the transfer of the business and what was perceived to be her contractual terms post-transfer. The Respondent disputes the claim of unfair dismissal and contends that the Complainant resigned her position voluntarily prior to the transfer of the business as she did not wish to continue working for the new owner.

In considering this matter, I am satisfied that the following material facts have been established, namely:

·         The Complainant was employed by the Respondent from 20 May, 2016 until 6 April, 2018 and was working in the position of Crèche Manager when her employment was terminated.

·         The Respondent’s business transferred to Mr. B by way of a transfer of undertakings on 9 April, 2018.

·         The Respondent engaged with Mr. B (the Transferee) in relation to the sale of the business for a number of weeks prior to the transfer and that Complainant was fully aware that the transfer would be taking place several weeks prior to transfer date.

·         The Complainant had a meeting with the Respondent and Mr. B (the Transferee) on 6 April, 2018 and there was discussion in relation to the Complainant’s existing terms and conditions of employment.

·         The Complainant informed both the Respondent and Mr. B (the Transferor) by e-mail on 7 April, 2018 that she would not be transferring to the employment of the new owner following the transfer of undertakings. The Complainant’s employment did not subsequently transfer to Mr. B following the transfer of the business on 9 April, 2018.

·         The Complainant’s employment with the Respondent terminated on 6 April, 2018 and she was issued with a P45 on this date.

In the case of Symantec Ltd -v- Lyons [2010] 1 I.L.R.M. 112 the High Court dealt with an appeal from a determination of the Employment Appeals Tribunal relating to a claim by two employees under the Redundancy Payments Act 1967 that arose after they decided not to transfer to the new employer under the terms of the transfer of undertakings directive. In this judgement Edwards J. held that: “As the defendants/respondents have rightly pointed out Irish implementing legislation does not make any particular provision as to what will occur if employees decide not to transfer. However, contrary to their belief, that fact operates against them. It does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-à-vis the transferor. It cannot do so because the fact that 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. However, the transfer still goes ahead unless a Member State expressly provides for the contrary in its implementing legislation. That this is so is clear from the judgment of the ECJ in Katsikas. That court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the court said “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking’s employees do not wish to remain in the transferee’s employ.

In my view nothing could be clearer. If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy it could have enacted legislation to that effect. It has not done so. This court is completely satisfied that by virtue of reg.4(1) it is not possible for the defendants/respondents in this case to make a redundancy claim against the plaintiff/appellant. In all the circumstances the court is satisfied to allow the appeals in both cases”.

The Labour Court held in the case of Rapier Contract Services Limited -v- Adina Predut UDD185 that the same principles enunciated in Symantec can equally be applied in respect of a claim for unfair dismissal where it stated that: “While the decision in Symantec refers to a claim under the Redundancy Payments Act, the Court is of the view that by parity of reasoning the same principle applies to a claim for unfair dismissal under the Unfair Dismissals Act. As no employment relationship between the transferor and the transferee survives a transfer under the TUPE regulations no claim of unfair dismissal against the transferor can be sustained by a worker who refuses to accept the transfer under the Regulations. In essence it would appear the upshot of the decision in Symantec Ltd is that such a worker terminates their own employment in such circumstances.”

In the present case, I am satisfied that the Complainant decided not to transfer from the employment of the Respondent to the Transferee, Mr. B, following the transfer of undertakings. I note that there was a dispute between the parties in relation to the reason why the Complainant decided not to transfer and whether the events leading up to this decision could be construed as a dismissal. The Complainant claims that she had negotiated an amended contract of employment with the Respondent following her return to work following maternity leave in 2017 and that she was not being offered the same terms and conditions by the Transferee and in particular that her entitlements to free childcare for her infant child, a Christmas bonus of €500 and the continuation of her role as Manager would not be available to her following the transfer. The Complainant, in effect, is claiming that the failure of the Respondent and/or the Transferee to provide an assurance that her existing terms and conditions would be preserved following the transfer amounted to a dismissal.

Having regard to the totality of the evidence adduced, I do not accept that the Complainant was dismissed from her employment by the Respondent in the circumstances of the present case. I am satisfied that the Complainant was fully aware that the Respondent’s business was transferring to Mr. B by way of a transfer of undertakings with effect from 9 April, 2018. I am further satisfied that there had been ongoing communication between the Complainant and the Respondent in relation to the transfer of the business during the weeks prior to the transfer date. It is clear that there was a meeting between the Complainant, the Respondent and the Transferee on 6 April, 2018 in relation to the transfer and that matters concerning her terms and conditions of employment were discussed by the parties. I am satisfied that the Complainant was provided with assurances by Mr. B, both verbally at this meeting on 6 April, 2018 and by e-mail on 7 April, 2018, that her employment would continue on the same terms and conditions following the transfer of the business.

I find that the Respondent did not dismiss the Complainant but rather that she terminated her own employment when she decided not to transfer to the employment of the Transferee, Mr. B. In the circumstances, I find that as no dismissal took place no claim for unfair dismissal arises. Accordingly, I find that the complaint under the Unfair Dismissals Act 1977 is not well founded.

CA-00018750-006 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The Complainant claims that the Respondent, Ms. A (the Transferor) has contravened the provisions of Regulation 4(1) of the Regulations by failing to ensure that her terms and condition of employment transferred to the Transferee and new owner of the business (Mr. B).

EU Directive 2001/23/EC (“the Directive”), transposed into domestic law by the Regulations, provides in the first paragraph of Article 3(1) thereof, that “The transferor’s rights and obligations arising from a contact of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee”.The aforementioned provision of the Directive is transposed by Regulation 4(1) of the Regulations which provides as follows:

“4. Rights and obligations

(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.”

I note that the European Court of Justice in the case of Mikkelsen -v- Danmols Inventar A/S C-105/84 heldthat: “the protection which the Directive is intended to guarantee is however redundant where the persons concerned decides of his own accord not to continue the employment relationship with the new employer after the transfer. That is the case where the employee in question terminates the employment contract or relationship of his own free will with effect from the date of the transfer or where that contract or relationship is terminated with effect from the date of the transfer by virtue of an agreement voluntarily concluded between the worker and the transferor or the transferee of the undertaking. In that situation Article 3(1) of the Directive does not apply”.

As I have already stated in my findings above, I am satisfied that the Complainant was provided with assurances by the Transferee, Mr. B, both verbally at this meeting on 6 April, 2018 and by e-mail on 7 April, 2018, that her employment would continue on the same terms and conditions following the transfer of the business. I find that the Complainant decided not to transfer to the employment of the Transferee, Mr. B of her own volition and therefore the question concerning a contravention of any rights or obligations arising from her contract of employment in accordance with the provisions of Regulation 4(1) do not apply in the circumstances of this case.

In the circumstances, I find that the Respondent did not contravene the Complainant’s rights under Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

CA-00018750-008 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The Complainant claims that the Respondent has contravened the provisions of Regulation 8 of the Regulations by failing to consult with her and to provide her with the required information in relation to the transfer of the business.

Regulation 8(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 states:

“(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d) any measures envisaged in relation to the employees.”

It was not in dispute between the parties that a transfer of undertakings occurred within the meaning of the Regulations in the circumstances of the present case.

Regulation 8 provides for an information and (where applicable) a consultation process with employees’ representatives as opposed to any form of direct communication with individual employees on a one-to-one basis. Regulation 8(6) provides that where there are no representatives of the employees in an undertaking or business through no fault of their own, the employees concerned must be informed in writing in advance of the transfer of certain specified matters relating to the transfer.

It was common case that there was no employee representative acting on behalf of the employees in terms of the exchange of information between the transferor/transferee in relation to the transfer of undertakings.

I am satisfied that the Complainant’s employment with the Respondent terminated on 6 April, 2018 and therefore, her contract of employment did not transfer to the Transferee on 9 April, 2018. In the circumstances, I am satisfied that liability for the information and consultation obligations pursuant to the Regulations rests with the Respondent i.e. the Transferor in this case.

I am satisfied that the Complainant was fully aware of the pending transfer of the business to the Transferor (Mr. B) for a number of weeks prior to the date of the transfer on 9 April, 2018. However, Regulation 8(6) places an obligation on the employer to inform the employee about the transfer in writing, where reasonably practicable, not later than 30 days before the transfer, and in any event, in good time before the transfer. It was not in dispute that the Respondent failed to inform the Complainant in writing prior to the date of the transfer in relation to required information provided for in Regulation 8(6)(a) to (c). I accept the Respondent’s evidence that the Complainant was informed prior to the transfer date that her employment would continue on the same terms and conditions following the transfer of the business, and accordingly, I find that there were no measures envisaged in relation to her within the meaning of Regulation 8(6)(d).

Having regard to the foregoing, I find that the Respondent contravened the provisions of Regulation 8(6) of the Regulations by failing to inform the Complainant in writing prior to the date of the transfer in relation to required information provided for in paragraphs (a) to (c) of that Regulation.

CA-00018750-001- Complaint under the Payment of Wages Act 1991

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act, 1991 in relation to payment in lieu of notice.

CA-00018750-002- Complaint under the Organisation of Working Time Act 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 27 of the Act, I declare the complaint is well founded and order the Respondent to pay to the Complainant the sum of €500.00 in compensation in respect of the contravention of Section 12 of the Act.

CA-00018750-003 - Complaint under the Terms of Employment (Information) Act 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €660.00   being the equivalent of two weeks’ pay in respect of the contravention.

CA-00018750-004 - Complaint under the Unfair Dismissals Act 1997

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the Complainant was not unfairly dismissed by the Respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim is not well founded.

CA-00018750-006 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent did not contravene the Complainant’s rights under Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. Accordingly, I find that the complaint is not well founded.

CA-00018750-008 - Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is well founded and that the Respondent did contravene Regulation 8(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. I hereby require the Respondent to pay the Complainant €660.00 being the equivalent of two weeks’ remuneration in compensation for the contravention of Regulation 8.

Payment of Wages Act 1991 – Section 5 – Unlawful deduction – Organisation of Working Time Act 1997 – Section 12 – Rest breaks – Terms of Employment (Information) Act 1994 – Section 3 – Written Statement of Terms and Conditions – Unfair Dismissals Act 1997 – Dismissal - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 – Regulations 4 and 8