Complainant

Respondent

Anonymised Parties

A Security Operative (2)

A Security Company (2)

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026317-001

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026317-002

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026317-003

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026317-004

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026319-001

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026319-002

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026319-003

15/02/2019

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-00027400-005

31/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00028091-001

31/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00028091-002

31/03/2019

Adjudicator’s Note;

There was very significant duplication of complaints in this case and some were dealt with in related cases (ADJ 18671 and ADJ 20779).

Complaints CA-00026317-001, 002, 003 and 004 have already been the subject of a decision in ADJ 18761, as were complaints CA-26319-001, 002 and 003.

Complaints CA-00028091-001 and 002 were duplicates of other complaints and were withdrawn at the hearing.

Only complaint CA-00027400-005 under the Protections of Employees Transfer of Undertaking Regulations remained to be considered here.

The complainant was employed by the respondent as a Security Operative and deployed to work in the psychiatric unit of a general hospital.

He was employed by the respondent between July 27th and December 2nd, 2018.

At some stage in October, or late September 2018 the business of the company transferred to another company which has been the respondent in a series of related complaints.

The complainant says that here was no consultation of any sort with him about the transfer, or the basis on which his employment would be continued.

The respondent did not attend the hearing. No explanation was given for its failure to do so.

The respondent had previously engaged in relation to the complaint.

This complaint is against a ‘transferor’.

Even where a transfer takes place under the TUPE regulations liability passes to the transferee once the transfer has been effected. This matter was addressed in a number of previous decisions, some of which are referred to below. (See A Janitor (2) v A Contract Cleaning Company ADJ 6752).

As a matter of law, while certain obligations fall on a transferor in relation to consultation for example, any liability for the failure to do so passes to the transferee once the transfer has taken place, and the current respondent is not liable.

This matter also came up in ADJ 2984; A General Operative v A Beverage Company and I set out below some of the legal submissions in deciding that case on the liability of the transferor, and on which I will again base my decision in this case.

In that case the respondent submitted that it was not a proper party to the proceedings for the following reason.

Article 3(1) of Directive 2001/23 of 12 March 2001 provides that at the date of transfer all rights and obligations of the transferor to an employee automatically transfer by operation of law to the transferee.

The Directive goes on to provide that member states may create a continuing liability on the transferor post-transfer.

However, Ireland has not done so.

The 2003 Regulations, and in particular Regulation 4 make it clear that the State chose not to depart from the basic principle in Article 3 of the Directive that liability passes from the transferor to the transferee.

The respondent in ADJ 2984 further relied on Regulation 10(5) which empowers an Adjudication Officer to award compensation against ‘an employer’. The Regulation is as follows;

‘reference in this paragraph to an employer shall be construed, in a case where ownership of the relevant undertaking or business, or the part concerned of that undertaking or business, of the employer changes after the contravention to which the complaint relates occurred, as a reference to the person who, by virtue of the change, becomes entitled to such ownership.

This means that, with effect from whenever a transfer can be established (and if a transfer can be established) the party having liability (if any) is the transferee.

The jurisprudence of the Court of Justice of the European (CJEU) is clear in this regard; underpinning the position that, absent specific provision for liability on the part of the transferor, it passes to the transferee.

The respondent in ADJ 2984 relied on the decision of the CJEU in Berg v Besselsen [1989] I.R.L.R 447 where it was held;

‘It should be observed that according to the first sub paragraph of Article3(1) of Directive 77/187/EEC ‘the transferor’s’ rights and obligations arising from a contract of employment or from an employment relationship existing on the date of the transfer….shall, by reason of such transfer ..be transferred to the transferee…’

That Court went on the refer to the provision enabling a member state to enact legislation to include the transferor but otherwise noted that, where this has not happened;

‘It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer…’

See also Allan and Others v Stirling District Council (Court of Sessions) 1995 which followed the Berg decision and an article by Deakin and Morris in “Labour Law’ 2012 page 253 where the authors say;

‘This reinforces the point that it is not just contractual obligations which ay be transferred; liabilities arising out of other acts done by the transferor in relation to the employee, such as (for example) conduct amounting to sex discrimination and liabilities in tort, may also be carried over. The same principle applies to liabilities which an employer may incur for failure to comply with statutory information and consultation requirements’.

Accordingly, I find that a complaint against the transferor cannot validly be pursued on the basis of the foregoing and the complaint fails.

I have in any event held in cases by this, and one other complainant on the same facts against the transferee that no transfer took place.

For the reasons set out above complaint CA-00027400-005 under the Protections of Employees Transfer of Undertaking Regulations is not upheld and it is dismissed.

TUPE, complaint against Transferor