Complainant

Respondent

Anonymised Parties

A Sales Manager

A Cash in Transit Company

Act

Complaint 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-00025061-001

16/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00025348-001

28/01/2019

The complainant was employed on the 1st of September 2014 and the company was transferred under TUPE to the Respondent company on the 1st of October 2018. She is claiming that her contract of employment was changed resulting in a breach of the Regulations.  She is claiming that she was constructively dismissed. She's also claiming that she's entitled to a redundancy payment.

The Complainant said that she was notified on the 1^st September 2018 by her previous employer that she was being transferred under TUPE to the Respondent company. She said that she was told that redundancy was not an option for her as there was a position as a National Sales Manager available to her.  She said that the title of Business Development Manager was on her contract of employment and she was responsible for sales for all of the country.

The Complainant said that she met the HR Director and she was told that nothing would change. She had a discussion with her about a new contract of employment, but when the contract arrived her title was changed to Regional Sales Manager. She discussed the matter with the HR Director and the title was amended to Sales Manager. The transfer took effect on the 1^st October 2018 and the Complainant commenced work on the 8^th October as she was on pre-arranged holidays. On the 2^nd October she received a phone call from the Commercial Director asking her to amend her title on LinkedIn to Sales Manager as her position was now regionalised.

The Complainant said that she telephoned the HR Director who confirmed to her that the position was regionalised.  She said that the HR Director denied telling her that her position as National Sales Manager would not change after the transfer.  It was confirmed to her as she lived in the West that she would be looking after the Western Region. The Complainant said that this was a demotion for her.

On the 8^th of October the Complainant had a meeting with the Commercial Director and he advised her that as well as looking after the Western counties she would also look after Donegal and Longford Cork and Kerry.  She told him that it was unacceptable that she had been demoted to Sales Manager as she had a lot of experience in the industry.

On the 15^th October 2018 she was supposed to have induction training with the company, but this was cancelled.  She had a meeting with the HR Director instead. She had already sent an email to the HR Director stating that she was frustrated about the change in her job title. There were also problems with her customers who transferred regarding the services they were getting. She said that they were telephoning her irritated that they were not being provided with a satisfactory service as had happened in the past.  The Complainant said that she got no satisfactory response.  She met the Commercial Director the following day and again explained that it was unacceptable that she had been removed from the position of National Sales Manager with responsibility for the whole of Ireland to the position of Sales Manager for the West. She believed that this change reduced opportunities for her to earn commission even though she did not get commission in the other company.

The Complainant said that she was not satisfied with the outcome and she consulted her solicitor.  She instructed that a letter be sent to the Respondent raising the issues of concern to her about her transfer under TUPE and the demotion of her position from National Sales Manager having responsibility for the whole of Ireland to Regional Sales Manager which is a lower grade and has considerably less potential for earning commission.  The Complainant said that she was not happy with the response and decided to resign.

She said that she decided to resign because she felt she had been demoted, she was not provided with proper training or an induction into the company. The customers who had transferred over were not being provided with a satisfactory service resulting in her getting irate phone calls from them.  She submitted her resignation letter on the 19^th November setting out her reasons.  She said that she believed that she was entitled to redundancy as 2 other employees who had transferred over were paid redundancy.

The Complainant was an employee of Company X from the 1st of September 2014 and her employment transferred with the business to the Respondent company under TUPE regulations on the 30th of September 2018. The Complainant resigned and the 19th of November 2018 with immediate effect.

The Complainant’s former employer, Company X commenced consultation with the staff including the Complainant about the transfer of employment on Friday the 31st of August 2018.  The Complainant was given notification of the transfer in accordance with the TUPE regulations. The HR Director of the Respondent company arranged to meet the Complainant on the 3rd of September 2018 to discuss her role within the Respondent’s organisation structure as the Respondent is a much larger organisation than Company X. The Complainant negotiated a salary increase and was offered a commission structure in alignment with the other sales staff of the Respondent.  In addition, the Complainant was entitled to join the Respondent’s occupational pension scheme as she did not have a pension scheme in Company X. The Complainant had the title of Business Development Director in Company X. She was informed on the 3rd of September at the negotiations about her new contract that this title did not exist within the Respondent’s structure and that role would remain the same, but her title would change to be in line with the titles used by the Respondent for the 4 sales staff.

When the Complainant received the new contract, she requested that her title in the contract of employment be amended to Sales Manager rather than Regional Sales Manager. The Complainant signed this contract on the 4th of September 2018. Within two weeks of the Complainant starting work with the Respondent it was discovered that she was using the title of National Sales Manager rather than Sales Manager in her email footer. This title was not within the Respondent’s organisational structure as there are a number of Sales Managers in the company and at the same level as the Complainant. Her boss, the Commercial Director informed the Complainant that she was to amend her email footer and her social media and was not to use this title again.

On the 1st of November 2018, the HR Director received an email from an employment consultant on behalf of the Complainant. The letter alleged that the Complainant had been demoted. It also contained in a number of inaccurate statements about the TUPE regulations and what occurred in in respect of the transfer of her employment. She complained to that she had been corrected by the Commercial Director for using an incorrect title. It also stated that the Complainant was entitled to redundancy. The HR Director responded on the 13th of November 2018 informing the Complainant that as sales manager, it was inappropriate for her to use any other title in emails or social media as such use is not is not in keeping with the Respondent’s organisational structures.

The letter explained to the Complainant that the most senior roles after the Commercial Director is Sales Manager and therefore she was not in any way demoted by the change in title.  She was now responsible for the West including Cork Limerick and Galway cities plus any pipelines she had developed involving customers in any part of Ireland as well as other specific customer bases in addition to looking after her existing customers transferred over.

In response to this letter the Complainant submitted a letter of resignation dated 19^th November 2019 setting out a number of reasons for the resignation and requesting redundancy payment. The HR Director emailed the Complainant on the 19^th November attempting to clarify the misconceptions in the Complainant’s resignation letter also offering her training and asking her to reconsider resigning from the position. The Complainant responded that same day saying that she could not continue to work for the Respondent.

The Complainant was not demoted the title of Sales Manager was the next level to the Commercial role. The areas assigned to the Complainant gave her an opportunity to easily meet her targets and achieve commission earnings.

The TUPE regulations specifically states that there is nothing to prevent the transferee offering enhanced terms of employment. It is submitted that this is what the Complainant was provided with in respect of the transfer from the Company X to the Respondent. The Complainant's new contract provided for a pay increase, a commission structure to enable her to earn more income and a pension and it also provided for a longer notice period.

The HR Director said in evidence that the transferor company was a regional based company with 35 employees and one Sales person (the Complainant).  She said that the Respondent has 230 employees including a Commercial Director and 4 Regional Sales Managers which were equivalent to the position the Complainant had held.  The Complainant did not want to be called Regional Sales Manager, so it was agreed to call her Sales Manager. 

The Commercial Director noticed that she was calling herself National Sales Manager in emails social media and LinkedIn and he asked her to discontinue this practise. The HR Director said that they needed uniformity with the staff titles and it would annoy other staff if the Complainant could call herself National Sales Manager.

She said that the Complainant was given responsibility for the West because she lived in Galway as well as Cork and Limerick.  She retained all the customers she already had when she joined the company in addition she was assigned responsibility for specific sectors of business as well as following up business contacts she already had developed regardless of the location.  The Complainant was paid a higher salary and commission which did not apply in her previous employment.  The company also has a pension scheme. The Complainant’s salary went up from €35,000 to €42,000

The HR Director denied that the Complainant was demoted.  She was given enhanced terms and condition, was paid a higher salary and had an opportunity to earn commission. She was in an equal position to the other 3 sales people.

She said that the Complainant was looking for redundancy, but her position was not redundant.

The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.”  

Article 3(1) of the Directive which has been transposed in the Regulations as Regulation 3, provides that:

“The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.”

Regulation 9.   (2) provides: “A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by these Regulations shall be deemed to be modified so as not to be less favourable.

  (3)   Nothing in these Regulations shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision of these Regulations.”

The Complainant case is that she was demoted following the transfer in breach of the TUPE Regulations and she had no option but to resign because of this change to her contract.  The Respondent submits that the Complainant’s title was changed to comply with the titles of the equivalent sales staff within the organisation but that the Complainant was provided with enhanced terms and conditions of employment and there was no breach of the TUPE Regulations.

I note that the Complainant was the only sales person within the previous Company X and she transferred to a much larger company which had 3 other sales persons with the title of Regional Sales Managers and they offered the Complainant this title, but she opted instead for the title of Sales Manager. I do not accept that the Complainant’s contention that her position in Company X was the equivalent of the position held by the Commercial Director in the Respondent company and that she should have been assigned to the higher role. I am not satisfied that the change in title constituted a demotion. It was unreasonable for the Complainant to expect she could have responsibility for sales nationwide as the Respondent had 3 other Regional Sales Managers working in defined areas.  I note that the Complainant was assigned a specific areas and particular entities to pursue sales and also maintained responsibility for the customers she had in Company X as well any sales opportunities she was developing before the transfer regardless of the area.  

I also note that the Complainant got a substantial increase in pay and she was entitled to commission something she did not have with Company X. I am satisfied that the Complainant was provided with enhanced terms and conditions of employment on the transfer.  I am satisfied that the change to the Complainant’s title in her contract of employment was not a breach of the Regulations.  Regulation 3(3) cited above clearly provides that offering the Complainant enhanced terms and conditions of employment on transfer is not in breach of the Regulations and it is therefore untenable for her, as she does, that the Regulations were breached in any way by the Respondent. I note that the Complainant failed to pursue her grievance through the Respondent’s grievance procedures before she resigned. As there was no breach of the Regulations by the Respondent I find that it was unreasonable in the circumstances for the Complainant to resign. Therefore, for all of the above reasons, I find that the complaint is not well founded.

I find that the complaint is not well founded.

The Complainant claims that she is entitled to a redundancy payment as there was no role as National Sales Manager in the Respondent company. 

The Respondent stated that the Complainant was not dismissed for reasons of redundancy, but she resigned from the employment. The Complainant's role was filled following her resignation. Even if the Complainant's role was altered following her transfer under TUPE, which is denied, she is not entitled to a redundancy payment as the role she was offered was a suitable alternative role. It was on a higher salary with ability to earn commission and with an occupational contribution pension scheme. Therefore, she was not entitled to a redundancy payment under the Redundancy Acts in line with Symantec Limited vs Leddy and Lyons 2010 ILRM 112. I was referred to the definition of redundancy in Section 7(2) of the Redundancy Payments Acts 1967.

The Redundancy Payments Act defines redundancy as follows:

 7(2) “For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)   the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or 

(c)   the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or 

(d)  the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or 

(e)   the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

I am satisfied that the Complainant’s position was not redundant as per Section 7(2) cited above.  I find that she was not dismissed for reasons of redundancy, but she resigned from the employment for other reasons.  I note that her position was subsequently filled. In the circumstances, I find that the Complainant is not entitled to a redundancy payment.

I find that the Complainant is not entitled to a redundancy payment pursuant to the Redundancy Payments Act, 1967.

Transfer of Undertakings Regulations, breach of Regulations, Redundancy Payments, no entitlement.