ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014719

Parties:

	Complainant	Respondent
Anonymised Parties	A Cleaner	A Cleaning Business

Representatives

Eileen O'Connor West Cork Citizens Information Service

Complaints:

Act	Complaints Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00019195-001	15/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00019195-002	15/05/2018
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-00019203-001	15/05/2018
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-00019203-002	15/05/2018

Date of Adjudication Hearing: 18/09/2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,and .Regulation 10 of S1.131/2003 EC( Protection of Employees On Transfer of Undertakings ) Regulations 2003 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. This case is joined with ADJ 00014720.

Background:

The Complainant was represented by the Citizens Advice Service and there was no appearance by or on behalf of the Respondent.

Summary of Complainants Case:

The Complainant is a Polish National who presented her case with the assistance of an interpreter. Her complaint form stated that she had worked at the Respondent cleaning business 10 June 2013 to 1 December ,2017 through a process of continuity through Transfer of Undertakings on 29 September 2017. She did not have a contract of employment but received €170.85 gross per 10-hour week.

There are two Employers relevant to this case. I will refer to the Employer 10 June 2013 to 29 September 2017 as Employer A (Ad 14720). I will refer to the Respondent in this case as Employer B.

Preliminary Issue

On 29 May 2018, some 14 days post the submission of the complaint, the Complainants representative sought an extension in time on reasonable cause grounds in relation to both claims under Transfer of undertakings.CA -00019203-001 and CA-00019203-002.

She submitted that on 15 September 2017, Employer A informed the complainant that she was to transfer to the Respondent Cleaning Business. Her position involved cleaning for two local businesses and this continued with the new employer.

On 20 November 2017, the complainant received a text from the new owner which confirmed that he was no longer supplying cleaners to these businesses and he would issue a P45 to her. This followed on December 1, 2017. The Complainants request for a lump sum redundancy payment was rejected by the new owner and equally by the owner of Company A. Text messages were ongoing between the parties and the complainant was confused by this exchange given her very poor command of English. This delayed her making her complaints in time. The Complainants Representative sought an extension of time through the application of 41(8) on reasonable cause of the Workplace Relations Act, 2015. The Complainant had not met the Respondent during her employment and met for the first time at the hearing.

CA -00019195-001 Claim for Lump Sum Redundancy Payment

The Complainant employment ceased on 1 December 2017 as displayed on her P45 from Employer. The Complainant sought a lump sum payment based on her continuity of employment 2013-2017 from both employers A and B. Both in turn denied they were responsible for any such claim. Employer A told the complainant that she had passed on her contracts to Employer B which implied continuity. The Complainant exhibited two pages of text threads.

The Complainant submitted the key text from Employer B

Hi Ms A, from the 30 November, Company B will no longer be working in Site A and B. The hours are too little to work there anymore. I will issue you a P45 on the 1/12.Thank you for everything and I hope the new employer will take you on in site A and B.

The Complainant finished work on December 1 and was not rehired. She is receiving Job Seekers Benefit. She is seeking a lump sum Redundancy payment from Employer B

CA -00019195-002 Unfair Dismissal Claim

The Complainant submitted that she had been unfairly dismissed on December 1, 2017 by the Respondent and had not secured further work.

CA -00019203-001 claim under TUPE Regulations

The complainant submitted that the transferor did not ensure that her terms and conditions transferred to her new employer (transferee). The Complainant had not been formally notified of the takeover, nor had she been advised properly.

The Complainant was informed that the Respondent had only taken over some of Employer As contracts. She was denied her established continuity of employment an denied a redundancy lump sum payment.

CA -00019203-002 Claim under TUPE Regulations

The complainant submitted that she received mixed messages from both employers in relation to her status on transfer of employment on 29 September 2017. Employer A assured her that a TUPE situation prevailed, while Employer B disputed this. She had been denied written notification of the move. The complainants work was identical pre and post the transfer of the business.

Summary of Respondent’s Case:

Preliminary Issue:

CA -00019195-001 Claim for Lump Sum Redundancy Payment

The Respondent denied the claim for Redundancy. He outlined that he ran a Security firm and diversified into cleaning services. He received information from contacts in the field during September 2017 that Employer A was closing her cleaning business and was looking for someone to take over the cleaning business. He expressed an interest in the business but not the employees. He offered to talk to the staff but understood that the employees were being accommodated elsewhere. He confirmed that he took over the contracts and had not paid for these contracts. There were some teething problems in the transition of one of the sites where the complainant was based took longer to sort through. The Respondent confirmed that he expected a 6-month lead in period before profits emerged and dispatched a Hoover and Mops to the complainant’s base site. Staff Uniforms also changed.

The Respondent understood that the complainant was hired as a new employee via text/email messages. She worked 9 weeks prior to her termination of employment due to non-viable contracts. He spoke to her briefly on the phone around the time of her leaving. He did not have any other contracts in the complainant’s area of residency and it was not viable for the complainant to relocate to Cork. He was aware that 104 weeks were a necessary perquisite for Redundancy and the complainant did not have that service in his employment. He did not seek a return on the equipment on either of the sites when contract ceased in December.

The Respondent went on to confirm that he took on 5 of Employer As staff. He could not be expected to pay redundancy, he operated a small business and did not have the means. He confirmed that he was aware of the ambiguity on the identity of the employer in this case and he strongly contended that the conflict ought not to be resolved against him. He had always acted in good faith and had not taken on the complainant’s continuity of employment.

CA -00019195-002 Unfair Dismissal Claim

The Respondent denied that the complainant was unfairly dismissed and relied on her record of 9 weeks service to dispute the claim.

CA -00019203-001 claim under TUPE Regulations the Respondent rejected any link to transfer of undertaking protection. He submitted that the complaints were out of time and the complainant had not raised any issues at employment B prior to seeking a lump sum Redundancy payment. The Respondent disputed the existence of a Transfer of Business and distinguished the contracts from the employees. He had not agreed to take on staff in the context of any negotiations with Employer B and believed that it wrong that he was being targeted for a payment for which he had no liability.

CA -00019203-002 Claim under TUPE Regulations

The Respondent rejected any link to transfer of undertaking protection. He submitted that the complaints were out of time and the complainant had not raised any issues at employment B prior to seeking a lump sum Redundancy payment. The Respondent disputed the existence of a Transfer of Business and distinguished the contracts from the employees. He had not agreed to take on staff in the context of any negotiations with Employer B and believed that it wrong that he was being targeted for a payment for which he had no liability.

Findings and Conclusions:

Preliminary Issue;

I have given some consideration to the complainant’s application for reasonable cause in accordance with Section 41(8) of the Workplace Relations Act, 2015. The Complainant fully accepts that the claim had veered outside the statutory time limit permitted and has asked that I consider the extenuating circumstances which prevailed in the case, that of the complainants limited English and the ambiguity which existed on the identity of the correct employer.

The four components of this claim were received by the WRC on 15 May 2018. The disputed Transfer of Undertakings Employer A/Employer B scenario occurred on 29 September 2017. The Complainant exhibited a p45 attesting this date. This transfer of employment appears to have taken place solely by verbal and text exchange as it was clear that the Respondent had never met his employee before the WRC hearing. The complainant wishes to address her claims under the TUPE Regulations and is currently outside the statutory time limit.

The Labour Court in Cementation Skanska has established a test to be applied in cases where a party is seeking an extension of time. The Court has stated that the complainant is obliged to show that there are reasons which both explain the delay and afford an excuse for the delay on an objective standard ,to be applied to the fact sand circumstances known to the complainant at the material time…….There must be a causal link between the circumstances cited and the delay and the complainant must satisfy the Court , as a matter of probability , that had those circumstances not been present she would have initiated the claim in time .

They go on to canvas that the length of the delay should be considered.

In the present case, the complainant was clear that no issues arose for her on transfer of employment in September 2017. She submitted that nothing about her working life had changed bar the identity of her employer. My attention was drawn to the two-page submission which captured the “text thread “between the complainant, the Respondent and Employer A at different intervals. This test thread seemed to commence on 3 December 2017 which was within the statutory time frame for making a claim to the WRC. I found the composition of the texts inferred a perfect standard of English. This was reflected in the Respondents own evidence at hearing.

It was clear that this ambiguity of the correct identity of the employer was crystallised from week 1 December 2017. This permitted an extensive opportunity in time to submit the claims.

Having considered the application in accordance with Section 41(8) of the Act, I cannot establish that the complainant has demonstrated reasons that both explain and excuse the delay in the submission of her complaints CA-00019203001 and -002 I must deem these complaints to be outside the statutory time limit allowed.

CA -00019195-001 Claim for Lump Sum Redundancy Payment

I have considered this claim. The Complainant is seeking a lump sum redundancy payment in respect of her employment with the Respondent, 10 June 2013 to 1 December 2017. The Respondent has denied his liability for this payment as the complainant had not established continuity of employment. She had recorded 9 weeks in his employment, prior to her release due to non-viable contracts.

Council Directive No 2001/23/EC of March 2001(The Acquired rights Directive) is the third EC Directive on the approximation of the laws of the Member States relating to the safe guarding of employee’s rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. The aim of the Directive incorporated in full into Statutory Instrument SI/131/2003 in this Jurisdiction.

Article 1(a) of the Acquired Rights Directive provides that the Directive shall apply to any transfer of an undertaking business or part of an undertaking or business to another employer because of a legal transfer or merger.

Where the Directive and/or Regulations are breached, liability in the main falls on the transferee. Regulation 6 excludes the transfer of an undertaking where the transferor is the subject of bankruptcy or insolvency proceedings.

The difficulty in this case is the lack of any proof or record of administration of transfer. The Respondent has denied any link between the contracts and the staff. I found this to be erroneous. The Complainant did not interview for a position with the Respondent. She was administered onto the staff by text/email detail. From the outset, I was struck by her unshakeable belief that the job she undertook from October to December 2017 to what she had always undertaken. To explore whether the complainant is entitled to a Redundancy Lump sum payment. I must first establish if 1. A redundancy prevailed and 2. Was the Complainant eligible on service criterion to receive such a payment via a TUPE situation so vehemently denied?

The ECJ in Spijkers C -24/85 has established key criterion for deciding a transfer of undertakings

1 Type of Business

2 Transfer of Tangible Assets

3 Value of intangible assets

4 Takeover of the majority of the employees by the new owner

5 Transfer of customers

6 Degree of similarity between activities carried out before and after transfer

7 Period, if any, for which those activities were suspended.

At first glance, it seems that the complainant is well disposed to benefit from this test.

Article 1 of the Directive requires a change in the legal or natural person who is responsible for carrying on the business and who incurs the responsibility /obligations of an employer.

In Ny Molle Kro C-173/96 and Hildago C 247/96,

In the instant case, the complainant confirmed that she undertook the same jobs using the same tools and equipment in the same place from June 2013 -December 2017. She did not meet the Employer B prior to her transfer on 29 September 2017, which she understood offered the protection of continuity of service.

All 10 employees left the Employer A, the majority of whom were hired by Employer B, as others were taken on by another contractor. The Complainant worked Tuesday and Fridays in Site B and Thursdays in the School. On October 3, 2017 the complainant was asked by Company B to provide her employment details by email and she went on to receive pay slips from her new employer. These covered pay dates 11 and 18 October. The Complainant was a part time worker and carried on her duties at the respective sites, believing in her confirmed continuity of service.

The Complainants employment was ended dated 1 December 2017.

Having considered the facts of the case, documentation submitted, and the evidence adduced, I am satisfied that a Redundancy situation prevailed in accordance with section 7(2)(b) of the Act. I must also conclude that the complainant’s employment transferred from Company A (Respondent) to Company B on 2 October 2017(date on P45) and this employment is covered by TUPE Regulations 2003 which enshrines the complainant’s continuity of employment. Spijkers applied. Continuity of employment is also reflected on the Respondents P45 raised at the end of employment.

I find that the complainant is entitled to a Redundancy Payment, her claim is well founded.

CA -00019195-002 Unfair Dismissal Claim

I have decided that a Redundancy prevailed at this point. The claim is not well founded.

CA -00019203-001 claim under TUPE Regulations

I have determined this claim to be out of time. The claim is not well founded.

CA -00019203-002 Claim under TUPE Regulations

I have determined this claim to be out of time. The claim is not well founded.

Decision:

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.

CA -00019195-001 Claim for Lump Sum Redundancy Payment

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the complainant is entitled to a Redundancy Payment through the application of TUPE, calculated on the following criteria

Date of Commencement: 10 June 2013

Date of Termination: 1 December 2017

Gross Weekly pay: €131.45 (This figure was identified by applying a 48-week divisor to 2017 gross earnings as recorded on both P45s)

This award is made subject to the complainant having been in insurable employment under the Social Welfare act during the relevant period. There were no confirmed breaks in service.

CA -00019195-002 Unfair Dismissal Claim

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 have found the claim to be not well founded .

CA -00019203-001 claim under TUPE Regulations.

Regulation 10 of 1. Regulation 10 of S1.131/2003 EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires me to make a decision.

I have determined this claim to be out of time. The claim is not well founded.

CA -00019203-002 Claim under TUPE Regulations

I have determined this claim to be out of time. The claim is not well founded.

Dated: 27th March 2019

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Circumstances surrounding a transfer of employment and application for Redundancy/Unfair Dismissal