ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014720

Parties:

	Complainant	Respondent
Anonymised Parties	A Cleaner	A Cleaning Business

Representatives

Eileen O'connor West Cork Citizens Information Service

No Appearance by or on behalf of the respondent

Complaint:

Act	Complaints 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-00019357-001	22/05/2018
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-00019357-002	22/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00019357-003	22/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00019357-004	22/05/2018 Withdrawn at Hearing

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, Regulation 10 of the European Communities ( protection of Employees on Transfer Of Undertakings Regulations ) 2003(SI 20/131, 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 00014719.

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 29 September 2017 from when she went to work for the Respondent in ADJ 00014719. She did not have a contract of employment but received €135.37 gross per 10-hour week.

Preliminary Issue

On 29 May 2018, some 6 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.

She submitted that on 15 September 2017, the Respondent informed the complainant that she was to transfer to the Respondent Business cited in ADJ 00014719. 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 Respondent. Text messages were ongoing between the parties and the complainant was confused by this exchange given her very poor command of English, together with the ambiguity surrounding the identity of the employer capable of paying redundancy, the complainant advanced the case for reasonable cause. The Complainants Representative sought an extension of time through the application of 41(8) on reasonable cause of the Workplace Relations Act, 2015.

CA -00019357-001 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.

CA -00019357-002 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. The Respondent assured her that a TUPE situation prevailed, while the other employer disputed this. She had been denied written notification of the move.

CA -00019357-003 Claim for Lump Sum Redundancy Payment

The Complainants’ employment ceased on 1 December 2017 as displayed on her P45 raised by her Employer cited in ADJ 14719. The Complainant sought a lump sum payment based on her continuity of employment 2013-2017 from the Respondent who rejected her claim and confirmed that the Respondent cited in ADJ 14719 was responsible for any such claim. She contended that she had passed on her contracts to him which implied continuity.

The Complainant submitted the key text from Employer in Company B from the 30 November,2017.

Hi Ms A, 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.

CA -00019357-004 Unfair Dismissal Claim

Withdrawn at Hearing

Summary of Respondents Case:

Preliminary Issue;

The Respondent was not available for commentary on this presentation at hearing. In her correspondence with the WRC, copied to the complainant, she had stressed that she believed that the complaints were out of time.

The Respondent submitted a letter to the WRC dated 23 August 2018. She explained that she would not be attending the hearing of the case due to a combination of reasons.

She believed that the Respondent in ADJ 00014719 held responsibility to pay the complainant’s redundancy payments

2 Time had passed on the claim since 31 March 2018.

3 Personal health and business reasons.

The Respondent did not seek a postponement of the hearing and was not in attendance at the hearing.

In the letter submitted, the Respondent wrote that she had informed the complainant on 15 September 2017 of an approaching transfer of undertakings from her business to that of the Respondent in Ad 00014719 on 30 September 2017. She had allocated her cleaning contracts to two main businesses on her own cessation in business, one of whom was the Respondent. She had no idea that anything was wrong in the operation of the contracts until the Complainant contacted her seeking redundancy, which she disputed.

The Respondent submitted that she had attended another WRC hearing In January 8, 2018 concerning three of her former employees. She stated that the claim for Redundancy in that case was later withdrawn.

The Respondent submitted that she had no liability for the claims.

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 22 May 2018. The disputed Transfer of Undertakings 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 Employer cited in ADJ 14719 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 also 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 and the Respondent and the Complainant and the Employer cited in ADJ 14719. This text 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. It was clear that this ambiguity on the correct identity of the employer was crystallised from week 1 December 2017. This permitted an extensive opportunity in time to submit the claims before the WRC.

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-00019357-001 and -002. I must deem these complaints to be outside the statutory time limit allowed.

CA -00019357-001 claim under TUPE Regulations

This claim is statute barred and is not well founded.

CA -00019357-002 claim under TUPE Regulations

This claim is statute barred and is not well founded.

CA -00019357-003 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 29 September 2017.

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 I she subjects of bankruptcy or insolvency proceedings.

The difficulty in this case is the lack of any proof or record of administration of transfer. I have found this to be a major shortcoming on behalf of the respondent in this case. Both the entrance, egress and transfer of an employment relationship must be documented and the omission to adhere to these standards of a reasonable employer has placed the complainant in the unenviable position she finds herself in today.

I cannot accept that any of the reasons pro-offered by the respondent for her non-attendance were reasonable. A hearing of an employment matter is held with respect for both parties’ positions and I would have appreciated the Respondent attendance in the case as might have been better placed to put this employment relationship in the correct context much sooner. Attendance and explanation may have assisted with the assembly of the jig saw.

I must decide whether the complainant is entitled to receive a lump sum payment in Redundancy from the Respondent.?

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.

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 Respondent employment, the majority of whom were hired by Employer B (ADJ 14719). 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. By December 1, 2017 she had a 39-week record of work detailed on the Respondent P45 and 9 weeks on the Second employers raised P45. It is important for me to reflect that the second P45 totalled the annual total earnings incorporating both employers.

The Complainants employment ended dated 1 December 2017. Having considered the facts of the case and the evidence adduced, which was uncontested, I must conclude that the complainant’s employment transferred from Company A (Respondent) to Company B (Respondent Ad 14719 on 2 October 2017 and this employment is covered by TUPE Regulations 2003. Spijkers applied.

Therefore, the claim for a Redundancy lump sum payment is not properly before this Respondent. I find the claim to be 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.

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 found that CA -00019357-001 and CA -00019357-002 are both out of time and are not well founded .

2.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 concluded that a Transfer of Undertakings took place on 29 September 2017 which placed a continuity in the complainant’s employment with the Transferee, Company B. I have found the claim for a lump sum payment in Redundancy to be wrongly directed at the Respondent. The claim is not well founded.

Dated: 27th March 2019

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Redundancy Following a Transfer of Employment