Complainant

Respondent

Anonymised Parties

Maintenance Worker

Support Services Contractor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030946-001

17/09/2019

The claimant was employed as a Maintenance Worker with the respondent from the 1st.April 2012 to the 5th.July 2019 when he submitted he was made redundant by the respondent- hereafter known as Company A.The claimant stated that he was advised by the respondent that he was going to be let go by the company .The claimant submitted that Company B took him on entirely independently in July 2019 – he asserted that the new contract failed to recognise his 7.5 years service with Company A , that he went back to the bottom of the scale and that his hours changed from 17.5 hours to 25 hours per week. The claimant said he was paid €380 per fortnight. The claimant submitted that the respondent company made him redundant and were in breach of the Act by denying him his entitlement to redundancy. The claimant said that the work he was now doing was different to the work he did with Company A when his work was confined to cleaning duties. The claimant said that he was responsible for extra work   at the car park including weeding and strimming. The claimant asserted that he emailed Company B and asked them to take him on on foot of advice that TUPE applied and they replied that Company A was responsible for any outstanding matters and that TUPE did not apply. The claimant asserted that he was not offered the job he was seeking and he advised that he was being paid €10.86 per hour with Company B.

In response to the respondent’s post hearing submission , the claimant advised that Company had advised Company A that there was no transfer of undertaking. He stated that “I started and signed a new contract of employment with different hours.I was the one who made contact with Company B for a job as I have to provide for my family and I also had built up a good working relationship with the shops in the retail park.I feel myself that I was a loyal employee to Company A and that no transfer of undertaking took place”.

The respondent submitted that the claimant was advised by the respondent that Company B were taking over the running of the site .It was submitted that Company B advised Company A that as far as they were concerned TUPE did not apply .It was contended that the claimant transferred to Company B , that his hours had increased to 25 hours per week and that he had ben paid €10.80 per hour by the respondent.It was asserted that TUPE did apply , that the claimant had been taken on by Company B and that the claimant had continued to maintain his employment.It was submitted that this was a TUPE complaint as opposed to a redundancy complaint .It was submitted that Company B failed to observe their obligations under TUPE and that the respondent only learned that claimant was employed by Company B at a chance meeting.

It was submitted that for a transfer of undertaking to take place , there has to be a change of employer and that this occurred when the claimant’s employment transferred to Company B after Company A’s contract ended on the 5th.July 2019.It was submitted that no break in service took place and that the claimant continued to work on the same site doing “the same/similar duties”.It was submitted that the respondent fulfilled their obligation to notify , consult and inform the claimant and his new employer in accordance with TUPE Regs.It was contended that the previous economic activity carried out by Company A was now being done by Company B   and that the duties of the role were similar.Company A’s other employee on the site did not wish to transfer to Company B and while Company B had indicated that they would staff the contract with their own staff , the claimant had commenced employment with Company B with no break in service   - it was submitted that the claimant had stated that he was indeed an employee of Company B .It was submitted that any liabilities with respect to the claimant rested with Company B and that it was a matter for them to demonstrate why their employment of the claimant is not deemed to be a transfer under TUPE.It was submitted that TUPE applies if there is a change in service provider and Company A had fulfilled their obligations in this regard.It was submitted that in this context the issue of redundancy does not arise – the claimant continued to work on the same site with no less favourable terms and conditions of employment.

I have reviewed the evidence presented at the hearing and the follow up submissions made by the parties and noted their respective positions. The claimant is adamant that because he had to initiate contact with Company B to secure employment , there was no transfer of undertaking as had been asserted to him by the transferee. The respondent for their part are adamant that a transfer took place from Company A to Company B , that there was a change in service provider and that the claimant continued to work on the same site without interruption when the business transferred. It was not disputed that Company B was serving the same customer base as Company A or that one of the 2 employees who worked for Company A are now working for Company B. While the claimant asserted that the new company extended their service to include for example strimming on the site , I have concluded that the core business previously conducted by the respondent is now being continued by a new employer . Accordingly , on the basis of the evidence presented I have concluded that there was significant similarities between the service provided by Company A as that now provided by Company B and have concluded for the foregoing reasons that a transfer of undertaking did take place as defined under the European Communities (Protection of Employees on the Transfer of Undertaking )Regulations 2003, on the 5th.July 2019.Accordingly , a redundancy does not arise – this is consistent with the deliberations of the Labour Court in DETERMINATION NO. RPD1714.Consequently, I disallow the claimant’s appeal.