ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022626
Parties:
| Complainant | Respondent |
Anonymised Parties | An Insurance Advisor | An Insurance Advisory Company |
Representatives | In person | No appearance |
Complaint(s):
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-00029388-001 | 27/06/2019 |
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-00029388-003 | 27/06/2019 |
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-00029388-006 | 27/06/2019 |
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-00029388-008 | 27/06/2019 |
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-00029388-010 | 27/06/2019 |
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-00031255-006 | 02/10/2019 |
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-00031255-009 | 02/10/2019 |
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-00031255-011 | 02/10/2019 |
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-00031255-013 | 02/10/2019 |
Date of Adjudication Hearing: 26/02/2020
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
This inquiry involves eight complaints made against the Respondent for breaches under the Transfer of Undertaking Regulations (TUPE) and one complaint for Redundancy (RED). The Complainant contends that a transfer of undertaking occurred between the Respondent and a transferee company in or around January 2019. The first that she knew about this was when she received a P.60 in January 2019 indicating that the name of her employer had changed. The Respondent operated amongst other businesses, an insurance advisory business which changed its operating name over the course of the many years that the Complainant was employed there. The Complainant started work in April 1982 for the father of Respondent’s director. She worked in this position for 36 years before her position was terminated. Her job was to advise and sell insurance policies to customers. In these complaints it is contended that the Respondent was a transferor in a transfer of undertaking and was her employer until January 2019, after which the business changed its name and composition of directors. There is a related case taken against the transferee company recorded under the decision ADJ 22625, which should be considered alongside this decision. This adjudication hearing into these complaints took place over two days. The first hearing was 23 September 2019 at which a four TUPE complaints and one RED complaint (instituted on 27 June 2019) were presented. At the hearing, the director of the Respondent attended with his accountant and asked that the matters be adjourned and that prior to any hearing that all correspondence be forwarded to an alternative address, as the Respondent as well as the transferee company were not on notice of all complaints. This application was permitted by this Adjudicator. The hearing was adjourned to 26 February 2020 and the correspondence in respect of the date for hearing was sent to the alternative address requested by the Respondent. Following the first hearing date the Complainant instituted 4 fresh TUPE complaints on 2 October 2019 against the Respondent, which were duplicate complaints to those already brought. On the adjourned date, 26 February 2020 there was no appearance by or on behalf of the Respondent. All complaints (those dated 27.6.19 and the more recent complaints dated 2.10.19) were to be adjudicated upon. In light of the absence of the Respondent or anyone on its behalf the Adjudicator contacted the WRC and received confirmation that the Respondent had been put on notice of the hearing and that no adjournment application had been received by the WRC. The Adjudicator then proceeded to hear the evidence of the Complainant, in relation to her complaints, in the absence of the Respondent. |
Summary of Complainant’s Case:
The Complainant worked for the father of a director of the Respondent from April 1982 as an insurance policy advisor. He ran a reputable insurance advisory business in the north west of the country. Over the years the title and trading name of her employer changed a number of times, but the operation of the business and her employment remained the same. The Complainant’s job title was an insurance advisor. For thirty-six years the Complainant worked for this employer and until the last year of her employment (2018-19) she had been a loyal and happy employee. The last business name had changed a number of times; 1999, 2004 2018 and lastly in 2019 however the Complainant contends that through-out the 36 years, her service was never broken. Her complaint is that various breaches occurred under Regulation 10 of SI 131 of 2003 (namely that there was no information, consultation or notice of the proposed transfer of undertaking prior to it occurring. She also contends that that she should have been paid a redundancy. Her employment ended with the transferee company on 26 July 2019. Prior to this on 27 June 2019 she instituted these WRC proceedings (in respect of four TUPE complaints and one RED complaint) on 27 June 2019. On 2 October 2019, following the first adjudication hearing. the Complainant instituted four additional TUPE complaints which were duplicate complaints to the TUPE already brought against this Respondent. Specific Complaints CA-00029388-001 The Complainant claims that she was made redundant and was not paid any redundancy payment CA-00029388-003 The Complainant alleges that the Respondent failed to ensure that her terms and conditions of employment were transferred to the transferee (new employer) following the transfer of undertaking insofar the work that she did changed post-transfer. CA-00029388-006 The Complainant alleges that the Respondent did not inform the Complainant’s employee representatives of details in relation to the transfer CA-00029388-008 The Complainant alleges that the Respondent did not consult with the Complainant in relation to the transfer. CA-00029388-010 The Complainant alleges that the Respondent did not advise the Complainant in relation to the transfer.
CA-00031255-006 This complaint is a duplicate of CA-00029388-003 CA-00031255-009 This complaint is a duplicate of CA-00029388-006 CA-00031255-011 This complaint is a duplicate of CA-00029388-008 CA-00031255-013 This complaint is a duplicate of CA-00029388-010
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Summary of Respondent’s Case:
No appearance on or on behalf of the Respondent |
Findings and Conclusions:
CA-00029388-001 The Complainant was not made redundant before the transfer of undertaking occurred in late 2018/ January 2019 and this complaint was brought before she was made redundant by the transferee company. Consequently, I find this complaint to be not well founded CA-00029388-003 The Complainant alleges that the Respondent failed to ensure that her terms and conditions of employment were transferred to the transferee (new employer) following the transfer of undertaking insofar the work that she did changed post-transfer. The right to do precisely the same job as was performed pre-transfer is not a protected right under the TUPE regulations. It is not a term or condition of a job, especially in cases such as this where there was no written contract in place, that the way a job is performed is a condition of that job that in all respects must survive a transfer. Job responsibilities are not frozen and may change from time to time, whether or not a transfer of undertaking has taken place. I find this complaint to be not well founded
CA-00029388-006 The Complainant alleges that the Respondent did not inform the Complainant’s employee representatives of details in relation to the transfer As no evidence was tendered in respect of the failure of the Respondent to inform the Complainant’s employee representative, I find that this complaint to be not well founded CA-00029388-008 The Complainant alleges that the Respondent did not consult with the Complainant in relation to the transfer. I accept the uncontested evidence of the Complainant that she was not consulted prior to the transfer of undertaking and I am satisfied that this complaint is well founded however as this breach has been remedied in ADJ 22625 I make no award. CA-00029388-0010 The Complainant alleges that the Respondent did not advise the Complainant in relation to the transfer. I accept the uncontested evidence of the Complainant that she was not advised by the Respondent prior to the transfer of undertaking and I am satisfied that this complaint is well founded however as this breach has been remedied under ADJ 22625 I make no award. CA-00031255-006 As this complaint is a duplicate of CA-00029388-003 I find this complaint to be not well founded CA-00031255-009 As this complaint is a duplicate of CA-00029388-006 I find this complaint to be not well founded CA-00031255-011 As this complaint is a duplicate of CA-00029388-008 I find this complaint to be not well founded CA-00031255-013 As this complaint is a duplicate of CA-00029388-010 I find this complaint to be not well founded
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00029388-001 The Complainant was not made redundant before the transfer of undertaking occurred in late 2018/ January 2019 and this complaint was brought (on 26 June 2019) prior to her being made redundant by the transferee company in July 2019. I find that she was not made redundant by this Respondent and that this complaint is not well founded. CA-00029388-003 The Complainant alleges that the Respondent failed to ensure that her terms and conditions of employment were transferred to the transferee (new employer) following the transfer of undertaking insofar as the work that she did changed post-transfer. The right to do precisely the same job as that which was performed pre-transfer is not a protected right under the TUPE regulations. It is not a condition of a job, especially in cases such as this where there was no written contract in place, that the type of work that is required to be done is a condition of that job that in all respects must survive a transfer. Job responsibilities are not frozen and may change from time to time, whether or not a transfer of undertaking has taken place. I find this complaint to be not well founded
CA-00029388-006 The Complainant alleges that the Respondent did not inform the Complainant’s employee representatives of details in relation to the transfer As no evidence was tendered in respect of the failure of the Respondent to inform the Complainant’s employee representative, I find that this complaint to be not well founded CA-00029388-008 The Complainant alleges that the Respondent did not consult with the Complainant in relation to the transfer. I accept the uncontested evidence of the Complainant that she was not consulted by the Respondent prior to the transfer of undertaking and I am satisfied that this complaint is well founded. Award: Nil CA-00029388-0010 The Complainant alleges that the Respondent did not advise the Complainant in relation to the transfer. I accept the uncontested evidence of the Complainant that she was not advised by the Respondent, prior to the transfer of undertaking and I am satisfied that this complaint is well founded. Award: € Nil
CA-00031255-006 As this complaint is a duplicate of CA-00029388-003 I find this complaint to be not well founded CA-00031255-009 As this complaint is a duplicate of CA-00029388-006 I find this complaint to be not well founded CA-00031255-011 As this complaint is a duplicate of CA-00029388-008 I find this complaint to be not well founded CA-00031255-013 As this complaint is a duplicate of CA-00029388-010 I find this complaint to be not well founded
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Dated: 25-08-2020
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
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