ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023929
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Haulage Company |
Representatives | Self-Represented | Self-Represented |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
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-00030436-004 | 22/08/2019 |
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-00030436-005 | 22/08/2019 |
Dates of Adjudication Hearing: 16/12/2019 & 03/03/2020
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, 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 alleged that he transferred to the Respondent company on 16th June 2019. He alleged that prior to his transfer he was in receipt of a weekly salary of €550. The commencement date of his employment was 2nd July 2018. On 22nd August 2019, shortly after his alleged transfer, the Complainant lodged two separate complaints under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). A hearing in relation to this matter was convened for 16th December 2019 and resumed on 3rd March 2020. |
Summary of Complainant’s Case:
On the first day of hearing, the Complainant alleged that his former employer failed to ensure that the terms and conditions of his employment were respected following the transfer of his employment. Following brief submissions in relation to this issue, the hearing was adjourned so as to allow the Complainant to ensure the correct Respondent had been named as his former employer and to allow him to issue a more comprehensive submission regarding the existence of a transfer, as defined within the Regulations, between his former employers. On the resumed date, the Complainant failed to attend the hearing and failed to present any form of submission as requested. Having consulted the relevant file, I am satisfied that the Complainant was on notice of the same and has subsequently failed notify the Commission of any circumstances that might explain his absence on the resumed date of hearing. |
Summary of Respondent’s Case:
At the outset, the Respondent denied that that the Complainant’s employment with them was subject to a transfer within the meaning of the Regulations. The Respondent attended the resumed hearing, however as the Complainant failed to issue a submission or provide any other form of evidence in support of his claim, the Respondent offered no further evidence in rebuttal. |
Findings and Conclusions:
In this matter, the existence of the transfer of undertakings must be established by the Complainant. While the complaint form does allege a breach of the Regulations, the Complainant did not provide any submission in respect of the complex matter of the existence of the transfer of undertakings between his former employers. Having regard to the same, I have not been presented with enough evidence to fund that a transfer occurred between the parties. As such, I accept the Respondent’s submission that no transfer occurred in this instance. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00030436-004 Section 10 of the Regulations (as amended) empower me to declare a complaint, if lawfully presented, to be either well-founded or not well-founded. Given that the Complainant failed to prove the existence of a transfer, as defined by the Regulations, between his former employers, I find that this complaint is not well-founded and consequently the Complainant’s application fails. CA-00030436-005 Section 10 of the Regulations (as amended) empower me to declare a complaint, if lawfully presented, to be either well-founded or not well-founded. Given that the Complainant failed to prove the existence of a transfer, as defined by the Regulations, between his former employers, I find that this complaint is not well-founded and consequently the Complainant’s application fails. |
Dated: 12th June 2020
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Transfer of Undertakings, Non-Attendance |