ADJ-00002368

Complainant

Respondent

Anonymised Parties

A Shop Manager

A Florist Shop

Representatives

McInerney Solicitors

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-00002882-001

26/02/2016

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-00002882-003

26/02/2016

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-00002882-004

26/02/2016

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

CA-00002882-007

26/02/2016

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

CA-00002882-008

26/02/2016

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

CA-00002882-009

26/02/2016

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

CA-00002882-010

26/02/2016

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

CA-00003731-001

26/02/2016

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

CA-00003731-002

26/02/2016

The complainant was employed since 24th June 2006 by Company X (not the respondent) until the business transferred to Company Y (not the respondent in 2008) and then transferred to the respondent on 2nd February 2016. The Complainant has submitted claims in relation to: terms of employment, Protection of Employees on Transfer of Undertakings Regulations (hereinafter referred to as TUPE) and redundancy.

The complainant was the only employee of Company Y when on 2nd February 2016 the business transferred under TUPE regulations to the respondent.

The complainant details that the respondent failed to ensure that she remain on the same terms and conditions that she had before the transfer including her rate of pay and hours of work. Documentation provided outlined that the complainant had been paid €16.66 per hour with Company Y but that this was immediately reduced to €11.00 per hour and her days were reduced from a 4/5 days per week to a 3 days week by the respondent.

The complainant was upset with this, went to her doctor and remained out sick with stress.   When she attempted to return to work, she was advised by the respondent that they were not prepared to honour the contract of employment and detailed that the complainant had applied for redundancy. The complainant was advised on 9th March 2016 that her employment would cease as the respondent did not want to keep her on.

The respondent did not attend. I confirmed that a letter had issued notifying the respondent of the date, time and location of the hearing.   On 9th November 2018 the WRC received a phone call from Mr A of the respondent advising that Ms B, of the respondent, was ill and unable to attend the hearing. It was further detailed that Ms B was not the correctly named respondent. No request for an adjournment was sought.

Previous hearings had taken place in relation to these complaints, which the respondent had attended, but due to unforeseen circumstances no decision could be issued. This hearing, therefore, proceeded as a de novo hearing.

Preliminary Issue:

The respondent in their correspondence with the WRC detailed that they were not the correctly named respondent. The complainant advised at the hearing that she was satisfied that the name was correct. Based on the evidence of the complainant who was in attendance, I do not find any evidence to support that the respondent is incorrectly named.

Substantive Issue:

The claim is that the respondent did not protect the complainant’s contract of employment as set out in TUPE regulations, by failing to honour her rate of pay and hours of work.

The relevant part of Regulation 4 provides:

“4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.  (2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

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.”

I find that the Respondent was obliged to honour the terms and conditions held by the Complainant at the time of the transfer, namely with regard to the Complainant’s rate of pay and hours of work.

I find the complaint to be well founded and require the Respondent to pay the Complainant compensation amounting to €2,000, which I deem to be just and equitable under the circumstances.

This complaint was withdrawn.

This complaint was withdrawn.

This complaint was withdrawn.

This complaint was withdrawn.

The complainant detailed that she did not receive details of her terms of her employment.

The respondent did not attend. I confirmed that a letter had issued notifying the respondent of the date, time and location of the hearing.   On 9th November 2018 the WRC received a phone call from Mr A of the respondent advising that Ms B, of the respondent, was ill and unable to attend the hearing. It was further detailed that Ms B was not the correctly named respondent. No request for an adjournment was sought.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 states 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 … terms of the employee's employment.”

Sec 7 (2) (d) of the Act orders “…the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977”

I am satisfied that the complainant should have received a statement of her terms of employment. As all legal obligations were transferred to the respondent on 2nd February I find that it is the respondent who has responsibility for this.  I am satisfied that this amounts to a breach of the Act.   I find this complaint to be well founded and I order the respondent to pay the complainant €495 in compensation.

This complaint was withdrawn.

The complainant was the only employee of Company Y when on 2nd February 2016 the business transferred under TUPE regulations to the respondent. She was advised on 9th March 2016 following a period of sick leave that her employment would cease, and she forwarded a RP77 to the respondent on 21st March 2016, but the respondent has failed to complete it. The complainant details that a redundancy situation had arisen and that the respondent has failed to pay her redundancy entitlement.  

The respondent did not attend. I confirmed that a letter had issued notifying the respondent of the date, time and location of the hearing. On 9th November 2018 the WRC received a phone call from Mr A of the respondent advising that Ms B, of the respondent, was ill and unable to attend the hearing. It was further detailed that Ms B was not the correctly named respondent.   No request for an adjournment was sought.

Section 7(1) provides that:

An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date. 

The respondent did not attend.  Based on the evidence, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Date of Commencement:             24th June 2006

Date of Termination:                      9th March 2016

Gross Weekly Pay:                          €475

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

The complainant was the only employee of Company Y when the business transferred under TUPE regulations to the respondent on 2nd February 2016. She was advised on 9th March 2016 following a period of sick leave that her employment would cease, and she forwarded a RP77 to the respondent on 21st March 2016, but the respondent has failed to complete it. The complainant expressed concerns that the respondent would claim insolvency and requested a statement of affairs to be provided should she be required to claim from the Employers’ Insolvency Fund.

The respondent did not attend. I confirmed that a letter had issued notifying the respondent of the date, time and location of the hearing.   On 9th November 2018 the WRC received a phone call from Mr A of the respondent advising that Ms B, of the respondent, was ill and unable to attend the hearing. It was further detailed that Ms B was not the correctly named respondent. No request for an adjournment was sought.

The complainant detailed that in the event that the respondent claims insolvency, the complainant should be provided with a statement of affairs so that she can claim from the employers’ insolvency fund.

The legislative basis for the insolvency payment scheme as detailed under the Redundancy Acts is set out through the Protection of Employees (Employers Insolvency) Act 1984-2006.Thisprovides, for a “Redundancy and Employers Insolvency Fund” and Section 5 and Section 6 of the Insolvency Act sets out “Employees’ rights on insolvency of employer”.

Section 6(5)sets out that the “provisions of subsections (6) and (7) of this section shall apply in a case where a relevant officer is either appointed or required to be appointed.

Section 6(6) detailsthat Subject to subsection (7) of this section, the Minister shall not in a case which is a case referred to in subsection (5) of this section make any payment under this section in respect of any debt until he has received a statement in the prescribed form from the relevant officer of the amount of that debt which appears to have been owed to the employee on the relevant date and to remain unpaid; and the relevant officer shall, on a request being made in that behalf, by the Minister, provide him, as soon as is reasonably practicable, with such a statement. 

Having considered the evidence of the complainant and her concerns in relation to same, I uphold the complaint and find that where it is necessary to claim from the Employers’ Insolvency Fund, a statement in the prescribed form from the relevant officer of the amount of that debt which appears to have been owed to the employee should be provided.

CA-00002882-001

I find the complaint to be well founded and require the Respondent to pay the Complainant compensation amounting to €2,000.

CA-00002882-009

  I find this complaint to be well founded and I order the respondent to pay the complainant €495 in compensation.

CA-00003731-001

I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Date of Commencement:             24th June 2006

Date of Termination:                      9th March 2016

Gross Weekly Pay:                           €475

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

CA-00003731-002

I uphold the complaint and find that where it is necessary to claim from the Employers’ Insolvency Fund, a statement in the prescribed form from the relevant officer of the amount of that debt which appears to have been owed to the employee should be provided.

Insolvency, TUPE, redundancy, terms of employment, statement of affairs