ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00015650

Complaint(s):

Date of Adjudication Hearing: 09/11/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This complaint refers to a former manager who has alleged that her terms and conditions were not honoured following a transfer of undertaking of the business to the Respondent.

Summary of Complainant’s Case:

The Complainant was appointed as a General Assistant with a contract cleaning business on the 13th March 2017. She maintained that in the 5th March 2018 she was promoted to manager and were she received a permanent contract of employment to this affect which increased her rate of pay to €12.35 per hour. This contract of employment was signed by both the Complaint’s manager and the Complainant, and was presented as evidence.

The Complainant advised that she received notification in April 2018 that due to a loss of contract the business was transferring, and she was to be subject to a transfer of employment to a new employer (the Respondent) who had secured the business. The Complainant submitted that she was advised that this change was to take place on the 1st of May 2018, however the transfer did not occur until the 1st June 2018.

The Complainant maintained that on the 12th June 2018 she was advised by the Respondent, the Transferee (her new employer under the transfer), that the information provided to it from the Transferor indicated that she was an Acting Manager on a rate of €12.35 per/hour on a fortnightly payroll. The Complainant was also advised that the Respondent was in possession of a permanent contract for the position of Manager for a different employee, and where that person had a start date of the 20th March 2008. The Respondent advised the Complainant that this person had been on a period of sick leave for 9 months and that the contract of employment for the Complainant that they received from the Transferor indicated that her appointment as a manager was only temporary and until the actual manager returned from her sick leave.

The Complainant maintained that she then submitted her contract to the Respondent which stated she was in a permanent position as Manager to clarify matters, but that the Respondent as transferee failed to honour her terms and conditions. The Complainant submitted that the Respondent advised her that there was no role for her as a manager, however she was not being dismissed.

The Complainant maintained that on the 19th June 2018 she received a phone call from the Area Manager requesting her to attend a meeting on the 20th June 2018. The Complainant submitted that she attended the meeting on the 20th June 2018 and a discussion took place regarding her role. She advised that the Respondent was seeking proof of her role as a Manager and she asked the Respondent for a copy of the TUPE information they had received from the Transferor.

The Complainant stated that the TUPE information she received from the Respondent did not mention a job title, and she was then asked to step outside from the meeting. At this stage she was informed that she was not sacked however she was informed there was no job for her. She contacted her solicitor and was advised to look for the TUPE information provided to the Respondent from the Transferor.

The Complainant maintained that she was asked to hand back her keys at that point and she was provided with no reassurance from the Respondent with regard to her job. She met a number of colleagues on the site that day and ultimately left the premises. She remained on sick leave until her contract was terminated in September 2018 and where she has made a separate complaint of unfair dismissal. The Unfair Dismissal complaint is not subject to the hearing within.

In summary the Complainant maintained that she had been appointed as a Manager, that she was a good employee, there was never any complaints about her, and she would have received compliments regarding the high standard of her work. She maintained that as a result of what happened to her on the 20th June2018 she was out of work and had to take medication to help her sleep. She has subsequently found alternative employment.

Summary of Respondent’s Case:

The Respondent maintained that the information it received as part of the transfer of undertakings from the Transferor was that the Complainant was an Acting Manager. The Respondent submitted emails it received from the Transferor from the 23rd April 2018, 18th May 2018 and the 1st June 2018 which indicated on each occasion that the Complainant had a title of Acting Manager. The Respondent advised that it had never seen the contract of employment of the Complainant which stated that she was a Manger until it was provided to them on the 12th June 2018.

The Respondent maintained that the Transferor had appointed another person in the role of Manager since 2008 and that person had been on sick leave but had planned to return to work on the 20th June 2018. It therefore relied on this information and had sought to regrade the Complainant to her former role.

The Respondent advised that it had understood this information to be correct and it wished to rely upon it with regard to the Complainant, and stated it therefore viewed the Complainant’s substantive role was that of a General Operative. The Respondent further advised that it had called a representative from the Transferor to the hearing within, however they had refused to attend. As a consequence the Respondent had sought the Workplace Relations Commission to summon the Transferor to attend the hearing to verify the basis of the Complainant’s position and the information that was provided to the Respondent as part of the transfer of undertakings.

The Respondent acknowledged that the Complainant had presented a Contract of Employment stating that she was a Manager, however it maintained that this contract was never provided to the Respondent at the time of the Transfer. The Respondent contended it had been provided information during the TUPE process which identified another person in the role of Manager. The Respondent acknowledged it had no personal difficulty with the Complainant but it believed that the Transferor had failed to provide proper information and this had caused the difficulty.

The Respondent therefore maintained that the information it had received referred to the Complainant as an Acting Manager until the Manager returned from her sick leave, and it was entitled to place the Complainant back as a general operative.

The Respondent submitted that in accordance with Section 21 (3) of the Employees (Provision of Information and Consultation) Act 2006 the transferor should notify the transferee of all the rights and obligations, arising from a contract of employment existing on the date of a transfer, which will be transferred to the transferee, so far as those rights and obligations are, or ought to have been, known to the transferor at the time to the transferee. It therefore argued that the fault lies with the Transferor.

Findings and Conclusions:

In accordance with Regulation 4(1) of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, 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.

Having considered the evidence presented I am satisfied that the Complainant had received a permanent contract of employment in March 2018 from the Transferor stating that she was a Manager and that this contract was signed by her then line manager as a permanent contract. In addition, the Complainant has also presented evidence of an email from her line manager which acknowledged that he appointed her as a Manager and where he apologised for any difficulties this situation was creating for her.

The Complainant advised that on 13th June 2018 she received a letter from the Respondent as Transferee which stated her Terms and Conditions of Employment that applied on 30th April 2018 and this stated her hourly rate as €12.35, but that it did not include a job title for the Complainant.

I am therefore satisfied that at the time of transfer the Complainant had every reason to believe that she was appointed in a permanent position as Manager at a rate of pay of €12.35 per hour, and where she held a contract of employment and supporting email form her former manager confirming these arrangements.

Accordingly, I find that the Respondent was obliged to honour the terms and conditions held by the Complainant at the time of the transfer. I conclude theses terms and conditions relate to the Complainant holding a permanent appointment as Manager at the rate of pay €12.35 per hour. Whilst the Respondent may have been acting on information it believed was correct, it is clear the information being relied upon by the Respondent was incorrect. Therefore, the Respondent should not have progressed with the regrading of the Complainant to a General Operative on 20th June 2018.

With regard to the Respondent’s argument that the Transferor should be held responsible for any error in the information it has provided, I refer to S 21 of the Employees (Provision of Information and Consultation) Act 2006. S21(4) states that the failure by the transferor to notify the transferee of any such right or obligation should not affect that transfer of the right or obligation and the rights of any employees against the transferee or transferor in respect of that right or obligation. Section 21(5) states that if (a) a failure of the foregoing kind consists of a failure to provide information or documents to the transferee the provision of which is necessary in order for the transferee to fulfil an obligation of the transferee owed to an employee, (b) the transferee is, in proceedings finally determined under the regulations, required by decision of a Rights Commissioner or determination of The Employment Appeals Tribunal to pay an amount of compensation to that employee in respect of a complaint that the transferee has not fulfilled that obligation, and (c) the transferee has payed that amount of compensation to that employee, then subject to subsection (6), the transferee has a right of action in any Court ofcomponent jurisdiction to recover from the transferor such proportion of that amount of compensation as the court determines to be attributable to the failure of the transferor or to abide the information or documents concerned.

I therefore find that the Complainant had a right to have her terms and conditions as a Manager to be transferred, and that the Respondent as Transferee failed to meet its obligations in this regard. It is for the Transferee to subsequently seek its own redress in accordance with S21 of the Employees (Provision of Information and Consultation) Act 2006.

Decision:

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 Regulation 10(4) of the European Communities Protection of Employees on Transfer of Undertakings Regulation 2003 (SI 131/2003) (the Regulation) I gave the parties an opportunity to be heard and to present any evidence relevant to the complaint.

In accordance with regulation 10(5) of the Regulation I declare that the complaint is well founded and where I find the Respondent failed to provide the employee with her terms and conditions of employment which pertained at the time of the transfer and where, based on the evidence provided, I find that the Transferor did not appear to transfer the correct information with regard to the Complainants role.

In accordance with Regulation 10(5)(2) of the regulation I require the Respondent to pay the Complainant compensation of 20 weeks remuneration amounting to €4,940 which I deem to be just and equitable under the circumstances.

Dated:  

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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