ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Bar Attendant | Bar & Restaurant |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00027819-001 | ||
CA-00027819-002 | ||
CA-00027819-003 | ||
CA-00027819-004 | ||
CA-00027819-005 | ||
CA-00027819-006 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance withRegulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003(S.I. No. 131 of 2003) 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 is employed as a Bar attendant since 18th May 2008, however the employer is contesting the commencement date to 2nd December 2014. Her gross weekly pay is between €170-€200. She worked on average 16 hours a week. She opened the premises 2 nights per week. She earned €8,500 in a year. Her case is that her employment should transfer to the new employers.
Summary of Complainant’s Case:
CA-00027819-001: The Complainant received a call on 20December 2018 from the transferor (named directors) to say that she was made redundant following the transfer of undertakings from her previous employer and therefore did not ensure that her terms and conditions transferred from her previous employer.
CA-00027819-002: The Complainant received a call on 20 December 2018 from the transferor (named directors) to say that she was made redundant following the transfer of undertakings from her previous employer and therefore did not observe the terms and conditions transferred from her previous employer. This claim is a duplicate of CA-00027819-001 and will be dealt with in the same.
CA-00027819-003: The Complainant received a call on 20 December 2018 from the transferor (named directors) to say that she was made redundant following the transfer of undertakings from her previous employer and therefore dismissed on the grounds of transfer of the business/undertaking.
CA-00027819-004: The staff had no representative appointed. All staff received a phone call with no notice regarding the transfer.
CA-00027819-005: The new employer did not consult at all as to the transfer. All that she was advised was that she was being made redundant on the 20 December 2018.
CA-00027819-006: The new employer was not consulted or advised as to the transfer to the new employer. She received a phone call on 20 December 2018 and was advised that she was redundant.
Complainant’s Evidence:
The employee was previously employed with a company who was taken over on 20 December 2018 via TUPE to the new owners. She received a letter on 21 November 2018 from her previous employer via e-mail to confirm the TUPE date but no details of the new employer at that stage. The Complainant was told that the new employer would engage with the employees and she received a phone call from the new employer on 20 December 2018 from the Director of the new employer to say the establishment she worked in would not be continuing and to go to Social Welfare. She attended the Social Welfare to explain her situation but they advised her to go to the WRC. She was then advised to put in Redundancy Claim to the new employer and she sent them a RP77 in January 2019. The Complainant received a text in reply to her redundancy claim from the Director saying she was only on a temporary redundancy and would be back after renovations but he had not mentioned this in their initial call.
The Complainant sent a registered letter on 25January 2019 explaining she was not happy with her treatment and asked for redundancy and HR information. She received no response to her letter.
The Complainant then lodged a redundancy claim but then realised it should have been TUPE so she contacted WRC to correct this. She had mentioned TUPE in the form but wrong legislation which was a clerical error on her part.
The next update the Complainant received was via e-mail to the employee on 1March 2019 saying the roles had been changed and if they wanted to take up employment they could return to work on 29 March 2019 where they would be issued with a new contract.
She resubmitted her claim under TUPE on 17 April 2019.
After cross examination by the representative she confirmed that another employee received the same call. He was a Security Guard and was told he was entitled to redundancy as security was not required anymore. The Complainant had a part-time job as a bar staff which she started on 18May 2008 and has a reference from her previous employer to confirm this. The new employer however stated she commenced work on 2December 2014.
The sale occurred and she worked as normal until then. It was only open at weekends. She said it was business as usual only change of ownership.
She states the employer did not engage with her or offer her any other work until she made the claim to WRC. They did not respond to her registered letter.
On 1 March 2019 was the first e-mail or any contact from the employer since the call on 20th December 2018.
Summary of Respondent’s Case:
The Respondent confirmed he was interested in purchasing the business and there were others interested. He would have met the employee who was a key holder during their visits to get access to the business. He confirmed he had a conversation with the employee during these visits verbally to say it would likely be a Restaurant instead of a late-night bar so it would be renovated.
The transfer of ownership was signed on 19 December 2018. He made a telephone call to all staff. He accepts the transfer occurred. The previous owner’s representative Solicitor sent him a copy of the TUPE letter that the employees received. He obtained a list of all the employees from the previous employer. He confirmed there is only 1 of 8 staff from the list that works for him now. When the business was transferred on 19 December 2018 it was closed for business.
He obtained the list of all staff including their phone numbers from the previous owners on 19 December 2018. He the phoned all staff saying renovations were commencing and premises was closing. He said there would be short term lay off but when they opened their jobs would be secure. He said that the Security staff wouldn’t be required then.
The business was a late-night bar but is now food orientated with a full bar.
He did not offer the staff other than the Complainant other work and this was offered to her pre transfer date and she said she had no interest in doing waitressing work, but the work included waitressing. They advertised and recruited 20 new staff in the middle of March up to the opening in April 2019. They had a second premises also.
The employer had legal representation advising the company at the time. He confirmed they had tried to call the Complainant to engage but did not correspond with her.
The employer said that the Company i.e. her previous employer was only incorporated in late 2017 so she couldn’t be employed for them in 2008, however, employee has letter from that employer dated 2015 to say she was employed.
Findings and Conclusions:
Section 10 (5) of the Regulations provides as follows
(5) A decision of a rights commissioner under paragraph (4) shall do one or more of the following:
(a) declare that the complaint is or, as the case may be, is not well founded;
(b) Require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or
(c) require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -
(i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,
(ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,
CA-00027819-001:
From the evidence presented a transfer occurred in accordance with the legislation therefore the employee was entitled to transfer to then new employer and to ensure her Terms and Conditions also transferred. This did not occur and based on the evidence presented by all parties and the fact there is no paper trail in place by the employer to show they met their legal obligations. Therefore, I find this claims succeeds. This in effect is a duplicate of the below claim CA-00027819-002and will be addressed here.
CA-00027819-002:
The Complainant claims that the Respondent has contravened the provisions of Regulation 4(1) by failing to observe the terms and conditions that she was entitled to in relation to her employment.
In considering this matter, I am satisfied that the following material facts have been established, namely:
The Complainant was employed by the Respondent from the original start date 15 May 2008 to the 20 December 2018 and was working in the position of Bar Attendant.
The business transferred to the Respondent by way of a transfer of undertakings on 19 December 2018.
The Complainant was not fully aware that the transfer would be taking place.
No meeting with the Complainant and the Transferor was held and the Complainant was never informed of her rights to transfer in writing or otherwise.
In the circumstances, I find that the Respondent did contravene the Complainant’s rights under Section 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.
CA-00027819-003: Dismissal
There is no debating the basic facts of this case. The provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) clearly were not observed in this case.
Section 5 of the Regulation refers to dismissals:
5. (1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.
(2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.
(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.
(4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001 relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.
Section 5 (2) allows for termination due to technical or organisational reasons which entails changes in the workforce. The workplace was changed. The employee was told she was on short term lay off until renovations were completed. No employee were transferred over. All new employees were hired on the premises. The Complainant held a position of Bar Attendant and an alternative suitable position was not offered. In the circumstances, I find that the Respondent did contravene the Complainant’s rights under Section 5 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and a dismissal did occur.
CA-00027819-004: Representation
Section 8 (5) of the Regulations provides for:
(5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.
This did not occur. In the circumstances, I find that the Respondent did contravene the Complainant’s rights under Section 8(5) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 by failing to put in place a procedure whereby the employee(s) could choose a member to represent them.
CA-00027819-005: Consultation
The Complainant claims that the Respondent i.e. the Transferee has contravened the provisions of Section 8 of the Regulations by failing to consult with her and to provide her with the required information in relation to the transfer of the business.
Regulation 8 provides for an information and (where applicable) a consultation process with employees’ representatives as opposed to any form of direct communication with individual employees on a one-to-one basis. Regulation 8(6) provides that where there are no representatives of the employees in an undertaking or business through no fault of their own, the employees concerned must be informed in writing in advance of the transfer of certain specified matters relating to the transfer.
This did not occur. In the circumstances, I find that the Respondent did contravene the Complainant’s rights under Section 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 by failing to consult.
CA-00027819-006: Did not advise in relation to the transfer
This is a duplicate claim as to CA-00027819-005 and is dealt with above.
Decision:
In accordance withRegulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) requires that I make a decision in relation to the complaints.
CA-00027819-001: This is a duplicate claim as to CA-00027819-002 and is dealt with below.
CA-00027819-002: In the circumstances, I find that the Respondent did contravene the Complainant’s rights under Section 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. I award the Complainant €200.00.
CA-00027819-003: The claim is well founded based on the evidence provided. She requested compensation as her preferred redress and on that basis as her claim succeeds I award her €7,120.00 in compensation.
CA-00027819-004: The claim is well founded based on the evidence provided. In the circumstances, I find that the Respondent did contravene the Complainant’s rights under Section 8(5) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 by failing to put in place a procedure whereby the employee(s) could choose a member to represent them. I award the Complainant €200.00.
CA-00027819-005: The claim is well founded based on the evidence provided. I find that the Respondent did contravene the Complainant’s rights under Section 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 by failing to consult. I award the Complainant €800.00.
CA-00027819-006: This is a duplicate claim as to CA-00027819-005 and is dealt with above.
Dated: 10th September 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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