ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Parties |
| Complainant | Respondent |
Anonymised Parties | A Catering Worker | A School Caterer |
Representatives | Citizens Information Service |
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Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00023631-001 | 29/11/2018 |
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-00023631-003 | 29/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00023631-005 | 29/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00023631-006 | 29/11/2018 |
Date of Adjudication Hearing: 06/02/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The complainant had been employed by a contractor in a school catering facility from 2013 on a series of fixed term contracts between August 2013 and June 2018. On August 2nd, 2018 she was advised by her employer that it had lost the contract with the school and that she would transfer as part of a transfer of undertaking to whichever new entity took on the contract. (See ADJ-18376 for the decision in the case against her employer). In due course that was the current respondent. However, she did not secure employment with the respondent and she submits the complaints outlined above. Adjudicator’s Note; ‘Transferor’ and ‘transferee’ are occasionally used loosely for convenience to refer to the previous operator and the new operator respectively without any finding under the TUPE regulations. |
Summary of Complainant’s Case:
The complainant received the letter advising her that her employer had lost the contract with the school on August 2nd, 2018 while she was still on maternity leave. She had been due to return to work on November 10th. By letter of June 28th to the respondent she made it clear that she would be returning to work with the respondent. She wrote to the school on September 2nd seeking clarification of her status. (At the separate hearing with the school as the named respondent it was accepted that the school had not, at any stage been her employer). The school confirmed that the current respondent had lost the contract and had removed all equipment including the plumbing and the electrics from the school. In further correspondence on October 1st the school confirmed that the complainant’s employment with the respondent had ended and that no transfer had taken place. She was due to return to work on November 10th but she did not do so and remains unemployed. |
Summary of Respondent’s Case:
The respondent became aware of the opportunity to apply for the opportunity to provide catering services to the school in early August through contact with an employee of the former operator. He began trading on September 3rd. He knew nothing of the complainant until he received correspondence from her representative on November 12th advising him that a transfer under the TUPE Regulations had taken place and that the complainant had been told this by the previous operator. He says that he was also told that the complainant had been employed by the school. Finally, he was told that the complainant would be ‘returning to work’ on December 3rd. This was the first he had heard of the complainant’s situation. He responded pointing out that the complainant had been employed by the previous operator, which was still trading elsewhere, and also commented on the previous operator’s practise of releasing and then re-engaging staff over the summer holidays. He also received a letter from the previous operator on December 1st stating that a TUPE transfer had taken place and enclosed the complainant’s contract of employment. He responds to the complaints by saying that the complainant never worked for him therefore neither the Maternity Protection Act, Fixed Terms Work Act or Unfair Dismissals Act complaints apply. Likewise, his advice was that the TUPE does not apply. He feels that the complainant was given incorrect information about her position. |
Findings and Conclusions:
The first issue concerns the applicability of the Transfer of Undertakings Regulations. The complainant’s employer, the previous operator of the catering service lost the contract on August 2nd and advised her that she would be transferring under the TUPE regulations to the new operator. Her employer had no knowledge who the new operator might be, and it was accepted (in separate proceedings) that the complainant was an employee of the previous operator on a contract of indefinite duration. As of August 2nd, there was no potential transferee either so even if one were later to emerge the respondent had no basis for making predictions about the applicability of the Regulations to the complainant who it accepted remained its employee. Precisely how the respondent came to become an interested party was not made clear at the hearing. This leads to the question as to whether a transfer of undertakings took place such as would bring the complainant within the protection of the regulations.
The provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 only apply in circumstances where there has been a transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer or a merger.
The would be ‘transferor’ (the previous operator) was advised on August 2nd 2018 by the client company that its contract was being terminated. As noted above, the evidence at the hearing was that at stage, no would be ‘transferee’ was known.
In due course, the ‘transferee’ (the current respondent) was awarded a contract.
This has been described as a ’second generation’ transfer and the view has been expressed that;
‘only where there has been a transfer of assets or of a considerable proportion of the workforce that [this] scenario (a second-generation transfer) will be likely to be caught by the Directive’
‘Employment Law in Ireland’ Cox, Corbett, Ryan,
The extension of such protection was seen as ‘too expansive’ and judgements of the Court of Justice of the European Union (or as the ECJ) have taken a more restrictive view.
In the decision of the European Court of Justice (ECJ) in Ayse Suzen v Zehnacker Gebauderinigung Gmbh Krankenhasservice [1997] I.R.L.R 255 the question referred to the Court was whether the Directive applied to a situation where an organisation, which had entrusted the cleaning of its premises to a first undertaking, terminated that contract and entered into a new contract with a second undertaking for similar works without any significant transfer of tangible or intangible assets from one undertaking to the other, was subject to the Transfer of Undertakings Regulations 2003.
The ECJ held that owing to the fact that no transfer of tangible assets had taken place and the transferee did not take over a major part of the workforce, there was no ‘transfer’ of an undertaking.
The transfer of the contract was seen to represent, not the undertaking as a whole, but one of the assets of the transferor.
In reaching its conclusions the ECJ decided;
1) For the Directive to be applicable the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract.
2) The fact that the service provided by the old and new holders of a contract is similar does not necessarily support the position that an economic entity has been transferred.
This means that an entity cannot be reduced just to the activity carried on by it. Its ‘identity’ also comes from other factors, such as its workforce, its management and staff, its buildings, the way in which the work is organised, its operating methods and the operational resources available to it.
In this case there was no transfer of assets to the respondent. Indeed, even fixed, normally immovable assets were removed by the previous operator.
The position regarding the other employee of the previous operator is not entirely clear. It seems that she was involved in some way in the application by the new operator but her new situation does not have the appearance of a transfer as would be normally defined. It was at one stage understood by the complainant that her former colleague might be taking over the running of the catering facility
I find that the facts in this case indicate a ‘second generation contract’, and that the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of the Directive. In this case ‘the transferor’ did not, on losing the contract, cease to exist. Indeed, it is a large company which operates many similar operations elsewhere.
The decision of the ECJ in the Suzen Case was followed by the Employment Appeals Tribunal in the case of Mary Cannon v Noonan Cleaning Limited and CPS Limited [1998] E.L.R 153.
In that case Noonan Cleaning held a contract for the cleaning of Balbriggan Garda Station. The cleaning contract was put out to tender and CPS obtained it.
CPS then refused to employ the staff who had been previously employed by Noonan Cleaning Limited and a case for unfair dismissal was taken against both parties. In applying the decision in the Suzen Case the EAT observed;
“It appears that where the new contractor refuses to take on a major part of the workforce in circumstances of a second-generation transfer where a Third Party is responsible for the transfer, the Directive does not apply, i.e. there is no transfer of an undertaking.”
The fact that the previous operator wished to treat itself as a transferee and the transfer as falling within the Regulations is irrelevant in considering whether they have legal force on the facts of the case.
I find that this was not a transfer within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. Therefore, complaint CA-00023631-001 fails.
Further, as the complainant was never an employee of the respondent all her other complaints fail. (CA-00023631-003, 005 and 006).
(The decision in the complaint against the original operator is in ADJ 18376).
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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.
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.
For the reasons set out above I do not uphold complaints CA-00023631-001, 003, 005 and 006 and they are dismissed. |
Dated: 5th March 2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words: