Complainant

Respondent

Anonymised Parties

A Bus Driver

A Bus Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032233-001

14/11/2019

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-00032233-002

14/11/2019

The complainant had been employed on a temporary basis since May 2018.

Some time later it became known that his employer proposed to transfer its activities to a new undertaking.

The transfer was originally scheduled to take place in the summer of 2018 but did not go ahead then.

In due course he raised what his position would be sometime in October or November 2019 to be told that, as he had a temporary contract, he had no rights under the Transfer of Undertakings Regulations.

Almost immediately after this he was told, on November 13th, 2019 that he was to be given a permanent contract and he received written confirmation of this on November 15th.

This has resolved the issue related to the statement of his terms of employment and he withdrew this complaint at the hearing. (CA-00032233-01).

However, he remains aggrieved at the lack of consultation about the proposed transfer which subsequently took place and the failure of the transferor to provide him with clearer information about what his future position was going to be.

The respondent (which was the transferor) did not attend the hearing. However it did submit correspondence asserting that the matters in dispute had been resolved.

The complainant has good grounds to be aggrieved about the manner in which he was treated by his former employer.

Perhaps the most bizarre example of this was the email he received from the respondent on November 12th which stated, in response to an inquiry from the complainant

‘The position you currently cover was advertised as a temporary vacancy, therefore you are not eligible to TUPE”.

Within a few days he says was given a Contract of Indefinite Duration and by November 22nd received confirmation that he ‘should be included in the TUPE process’.

The complainant was rightly aggrieved about all of this indecision.

However, the question that arises is whether he can make out a successful complaint against the Transferor in these circumstances.

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.

Regulation 10(5) 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.

In this case this means that, with effect from the date of transfer 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.

I take account also of 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…’

In previous cases on this point I have considered legal submissions including 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 may 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

Thus, while the Regulations place a clear obligation on both the transferor and the transferee to engage in consultation the question is, what happens when that has not been complied with and when a complainant makes a complaint after the transfer has taken place?

(It appears that no consultation took place in this case).

The Regulations (and the case law referred to above) make it clear, and I must find accordingly that a complaint against a transferor may not be pursued under the 2003 Regulations.

For that reason, the complaint is not well founded.

For the reasons set out above I find that complaint CA-00032233-002 is not well founded and I decide accordingly.

Complaint CA-00032233-002 was withdrawn at the hearing.

TUPE, Liability of Transferor