Complainant

Respondent

Anonymised Parties

A Catering Worker

A Catering Company

Act

Complaint 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-00023627-001

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-00023627-002

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-00023627-003

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-00023627-004

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-00023627-005

29/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023627-006

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-00023628-003

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-00023628-004

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-00023631-002

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-00023631-004

29/11/2018

The complainant was employed by the respondent in a school catering facility from 2013 on a series of fixed term contracts between August 2013 and June 2018.

On August 2nd, 2018 the respondent advised her that it had lost the contract with the school and that she would transfer as part of a transfer of undertaking to whichever complainant took over the contract.

However, this did not happen, and she submits the complaints outlined above.

The case is complicated, and the school and the supposed transferee have been listed as respondents in separate cases (and also erroneously in complaints CA-00023628 and CA-00023631).

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 under the TUPE regulations had taken place.

The complainant did not return to work after the conclusion of her maternity leave.

The respondent accepts that the complainant has a de facto contract of indefinite duration with it. While it issued a P45 to the respondent this was not with a view to terminating her employment and it did not do so.

Its employees are essentially seasonal workers and the respondent issues a P45 each summer as this is necessary for them to apply for social welfare payments for the duration of the summer closure. She had been working an eighteen-hour week and earning €166.50 gross.

The respondent however believed that the TUPE regulations applied to the complainant and wrote to the school on August asking it ‘to clarify its plans’ although it later (in November) confirmed that the complainant was its employee and not that of the school. Nonetheless the school was given details of the complainant’s return to work date.

Also, the respondent wrote to the new operator of the catering facility on November 29th giving him the complainant’s details with a view to her being employed there, again on the basis of its view that the TUPE Regulations applied.

The respondent says that the complainant has not been dismissed. The respondent submits that the complainant ‘s contract transferred to the school. The school confirmed that it had not taken over the operation.

The respondent understands that its other employee continues in employment with the new operator.

In respect of the complaint under the Maternity Protection Act the complainant was not dismissed by virtue of the issue of the P45.

The respondent insists that there was a transfer of undertakings; the new operator took over the business at the same location, with the same customers and using some of the equipment put in by the respondent.

Regarding the complaint under the Unfair Dismissals Act the complainant’s employment transferred to the new operator and was not dismissed.

There are a number of issues to be unravelled here.

The first concerns the applicability of the Transfer of Undertakings Regulations.

Even before that there is the respondent’s conduct in relation to that matter. It seemed to confidently assume, (though it is not clear whether it did so on the basis of legal advice), that the regulations would apply. It then proceeded to act on that basis. At no stage did it appear to consider that this might be a mistaken view or that it might have continuing obligations to the complainant.

The respondent is a large company employing some three hundred people at numerous locations. It might be expected that it would take some elementary steps to ensure that the information it was providing to the complainant was soundly based.

It had no means of being certain on August 2nd when it wrote to the complainant to tell her that her employment would transfer that this would in fact happen. The company which eventually took over the operation was set up only on August 14th.

The communication to the school from the respondent also on August 2nd asking it vaguely ‘to clarify its plans’ falls a long way short of what is to be expected of an entity which accepts that it did not terminate the complainant’s employment.

On November 23rd it accepted that the school was not the complainant’s employer despite seeking, on August 2nt to represent this as the position. The notification to the school in November of the complainant’s return to work date is therefore mystifying. (Just as mystifying was the detailed knowledge the school had of the contractual arrangements between the parties in this case, to the point of including a copy of one of the complainant’s contracts in its submission.)

The school’s plans were quite irrelevant to the complainant’s position. 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 whose employment, it accepted, it did not terminate.

So, while the complainant says that the respondent has breached Regulation 8 in respect of consultation and information the respondent had no such information in its possession, nor was there any basis at that stage for its claim that a transfer would take place.

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’ 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 potential ‘transferee’ was known.        

In due course, the ‘transferee’ (a respondent in a separate case) 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. Indeed, even fixed, normally immovable assets were removed. On the basis of the photographic evidence adduced at the hearing the respondent’s claim that the new operator used ‘some of the equipment put in by the respondent’ is stretching a point. The respondent removed everything that could be removed and left a bare unit save for some wall cladding, which scarcely meets the definition of ‘equipment’.

The position regarding the other employee 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.

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.”

I find that having considered the evidence before the hearing that a transfer of undertakings did not take place within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The fact that the current respondent wished to treat the transfer as falling within the Regulations is irrelevant in considering whether they have legal force on the facts of the case.

Turning to complaint CA-00013627-001 this is a complaint under sections 30 and 31 of the Maternity Protection Act, 1994.

As described above the respondent’s conduct was totally inconsistent; describing the complainant as enjoying a contract of indefinite duration, denying that her employment had been terminated, while simultaneously seeking to pin responsibility for her continued employment on either the school or the new operator of the catering facility.

These are contradictory positions especially as the complainant remains out of employment.

The respondent was told on November 28th by the complainant’s representative that neither the school nor the new operator were willing to accept that the complainant was their employee. An obvious option, indeed obligation at that stage was for the respondent to ensure that the complainant could return to work in some capacity, but there is no evidence that it gave this option any consideration.

In failing to do so, it effectively left her without any employment.

I uphold her complaint and make my award below. I regard the overall treatment of the complainant by the respondent during a period of protected leave as being at the outer limits of the spectrum of gravity.

For the reasons set out above I do not uphold the complaints under the Transfer of Undertaking Regulations (CA-00023627-002, 003 and 004).

CA-00023627-005 falls as the respondent has conceded that the complainant is employed on a contract of indefinite duration.

CA-00023627-006 is the complaint of unfair dismissal.

The failure of the respondent to honour its obligation as her employer and to restore the complainant to employment while it prevaricated about who else it might find to do so must be assessed by reference to its actual consequences, and not the intentions of the respondent, which were largely based on unfounded assumptions.

As noted above, it was aware on November 28th that neither the school nor the new operator were willing to accept that the complainant was their employee and it should have been clear that a failure to return the complainant to employment (to which she was due to return on November 10th) could only be interpreted as a termination of that employment.

Put simply, its inaction directly resulted as a matter of fact in the termination of her employment. Lacking in any element of fair procedure it is an unfair dismissal.

All the complaints CA-00023628 and CA-00023631 were listed for hearing in error as they relate to respondents in other cases and they are dismissed.

I uphold complaint CA-00023627-001 and award the complainant twenty weeks wages in the amount of €3330.00

I do not uphold complaints CA-00023627-002, 003 and 004 and they are dismissed.

I uphold complaint CA-00023627-006 and award the complainant €5000.00 for losses attributable to the termination of her employment.

All the complaints under CA-00023628 and CA-00023631 are dismissed.

TUPE, Maternity Protection, Unfair Dismissal