ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00022824

Parties:

Complaint(s):

Date of Adjudication Hearing: 05/11/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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:

1:        Opening Legal Issue – Requisite Service

The Complainant commenced service with the Respondent (for reference Company A) on the 11th June 2018 with the employment ending on the 5th February 2019. This being less than the requisite 12 months Service as required by the Unfair Dismissals Act, 1977.

1:1       Respondent Arguments

The Respondent pointed out the employment service deficiency in the claim and maintained that the Complaint was effectively precluded by this short service. His claim to have been transferred from Company B (a former employer) to the Respondent was not supported by any factual basis. Considerable documentary evidence was advanced in support of this argument.

Company B was getting out of the Ventilation Business as the owner was effectively scaling down as part of his retirement planning. The Respondent bought the ventilation product, a type of Filter Wool, from Company B and set about using it in its existing ventilation business. The purchase of the Filter Wool stock was the only transaction involved. Company A, the Respondent , did not buy any shares in Company B and had no Commercial/ Contractual or Ownership /Managerial involvement with it

To cater for the new gap in the market left by Company B and planned expansion in the West of Ireland, the principal territory of Company B now not provided for, a new employee was required. The Complainant was recommended by Company B and was hired as a new employee. He was not transferred in any TUPE sense. Filter Wool was simply one product in a wide portfolio and could not be the basis of an Employment Transfer claim. Other employees of the Respondent were also now selling the Filter Wool and any Commercial contracts had to be tendered for in the normal way. The Complainant did not bring a portfolio of “Captive Clients”.

1:2     Complainant Arguments

The Complainant maintained that his employment had been continuous from his previous employment (from the 11th January 2017) with a Galway based company (for reference Company B).

Company A had entered into a commercial arrangement with Company B regarding the provision of a particular type of ventilation product. The Complainant was the employee of Company B with the requisite knowledge of the product and the Customer contacts. He was effectively transferred with the specialist product and to say he had a new employment relationship was not correct. He acknowledged that he had a new employment contract from the Respondent, but this was just paperwork. He had the specialist knowledge and the Customer base. The purchase of the Filter Wool would have made no sense without him. He was a vital part of the deal and the issuing of a new Employment contract was just paperwork.

1:3       Adjudicator Decision

Based on clear documentary evidence -namely a contract of employment dated the 11th June 2018 between the parties - the employment commenced on that date.

Accordingly, the Complainant does not have the required twelve months service to pursue a claim under the Unfair Dismissals Act,1977.

There was no formal TUPE claim before the Adjudication although this statute was mentioned in passing in inter party correspondence in February 2019. However, it never appeared as a formal complaint to the WRC although the Complainant in his verbal presentation made considerable reference to the basic principles of TUPE to seek to establish service greater than twelve months.

In deference to the Complainant, who was not legally represented, I looked at the evidence presented but I could not see that there was the basis of a sustainable TUPE claim. There was no commercial transfer of business or “Business entity”. A quantity of fairly standard raw material was purchased. An understanding was given that queries from existing Customers regarding the Ventilation services no longer provided by Company B would be informed that Company A was available to provide the service. There was no transfer of existing business service contracts. Customers were free to go where they wished regarding their ventilation needs after Company B withdrew from the business. The giving of a Recommendation regarding the Complainant as a suitable potential employee for Company A was, it appeared, a standard employment reference issue. The key issue was that he was not “Transferred with a parcel of guaranteed work and service contracts” such as to sustain a potential TUPE claim.

Accordingly, the Complainant has not established an employment history of greater than twelve months with the Respondent Company A and the Unfair Dismissal Act,1977 complaint must be deemed Not Well Founded.

Having ruled in this fashion of the Preliminary Point I did not deem it necessary to go further with the Complaint.

2:        Summary of Complainant’s Case:

3:        Summary of Respondent’s Case:

4:        Findings and Conclusions:

5:        Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Complaint Reference Number CA-00029613 - Adjudication No 22824 is deemed to be not Well Founded and is dismissed. The Complaint fails for want of required employment service. Please see Section 1 above for detailed reasoning.

Dated:   15/01/20

Workplace Relations Commission Adjudication Officer: Michael McEntee

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