ADJ-00024763

Complainant

Respondent

Anonymised Parties

A Post Officer Worker

A Post Officer Operator

Representatives

Anne O'Connell Solicitors

Act

Complaint/Dispute 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-00029384-001

26/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029384-002

26/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00029384-003

26/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029384-004

26/06/2019

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-00029384-005

26/06/2019

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-00029384-006

26/06/2019

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-00029384-007

26/06/2019

The complainant worked as a post office worker for employer A in the same location from 16th of June 2017 until her employment was terminated by A on April 12th, 2019 on the basis that she said it transferred to B, the Respondent in this case, under the Transfer of Undertakings Regulations.

The complainant has submitted claims in respect of her dismissal under the Unfair Dismissals Act and under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 as well as a claim under the Employment Equality Act, the Terms of Employment (Information) Act, 1994 and the Minimum Notice & Terms of Employment Act, 1973.

The complaint in respect of a claim for alleged unfair dismissal is directly related to the question as to whether a Transfer of Undertakings occurred when the Respondent B commenced the provision of post office services on 15th of April 2019.

The respondent B in this case denies that a transfer of undertakings took place and submits that consequently the Complainant has not at any time been the Respondent’s employee. It is further   submitted that all of the Complainant’ claims against the Respondent must fail.

Supplementary post hearing submissions were requested from the parties and final correspondence in this matter was received on the 14th of May 2019.

The claims by the complainant are predicated on an assertion that a TUPE took place when the respondent B took over the duties of postmaster and the provision of Post Office services which had previously been provided by A. I am thus going to deal with the complaint under TUPE firstly in order to determine whether or not a transfer actually took place.

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-00029384-007

26/06/2019

The Complainant submits that

She was dismissed by the current employer (transferee) on the grounds of the transfer of the business undertaking,

She was employed by A on a two-day week basis until 12th of April 2019 when A retired,

She was informed by her employer A that her employment would transfer to B, the respondent as he was taking over the provision of Post Office services and opening the Post Office in his premises,

She met with the respondent B on the 5th of April to discuss her employment,

The respondent B advised her that this was a new role and she would not enjoy the same terms and conditions that she previously had, and he provided her with a different contract,

She received a letter from the respondent B dated 9th of April 2019 received by the complainant on 12th of April advising that he would not be employing her.

The Respondent submits that

On 15th April 2019 he took over the operation of a post office based in his premises where he operated a supermarket,

The previous operator (A) and Postmistress retired and ceased providing a post office service at her premises on April 12th, 2019,

On March 9th, 2019 the complainants employer A approached the respondent B at which time he informed her that if her two staff wanted to apply for jobs with him, they could, and he would look favourably on them, employer A then referred to TUPE and told him to Google it,

Respondent B understands that on 11th March, two days after their own meeting, employer A issued a letter to the two members of her staff informing them that on the termination of her provider contract with A Post and that the Respondent B would be their new employer, such a position was never agreed between B and A,

On April 11th employer A went to see Respondent B and tried to give him employee details for her two employees. Respondent B refused to take the documents and gave A a letter in which he said that TUPE did not apply in this situation and that he would not be taking over the staff working with A and that TUPE did not apply,

Separately the complainant contacted the respondent B on the 20th of March 2019 and the respondent B met with the complainant on 5th of April 2019 to discuss the possibility of the respondent B employing the complainant,

At that meeting the complainant advised the respondent that

- she worked “16 hours” per week (This contradicted what A had told him i.e. that she only worked one day a week)  

- she would only work Thursdays and Fridays – no weekends.

- she would not work half days.

- she would not work on her own.

- she would not take any responsibility for cash or balancing at the end of the day. (Again, this was in conflict with what the Respondent B had been told by employer A i.e. that the Complainant was entirely able to run the post office)

- she would not comply with the An Post imposed requirement that lunch breaks be half an hour from 2 - 2:30pm as she had normally taken an hour lunch break from 1-2 . This was despite the Respondent confirming there would be a 15-minute break in the morning and evening as well.

- she would not pay taxes

The upshot of that meeting was that the Complainant and the Respondent would consider matters further and that the Respondent would arrange a copy for the Complainant of the standard set of terms of employment and job description in respect of what a role in his new post office would involve. The Complainant subsequently collected these documents from the Respondent,

Nothing was set in stone at that meeting of 5th April in terms of what was going to happen in respect of the Complainant joining the Respondent as an employee or not and in fact on three separate occasions during that meeting the Complainant suggested she may not be open to working for the Respondent,

Ultimately, the Respondent decided not to take on the Complainant as an employee in his new post office, as was his entitlement,

The respondent submits that TUPE does not apply to this case for the following reasons:

No assets or employees transferred from the former Postmistress to the Respondent.

There was no transfer of premises or lease from the previous Post Office Postmistress to the Respondent. He provides the premises for the Post Office at his own premises.

All assets and equipment required to operate the post office were provided by the Respondent. Certain equipment previously used by the previous Postmistress was provided to the Respondent i.e. computer screens, electronic weighing scales, electronic keypads, signing pads and the working safe. However, these were provided to the Respondent by An Post and not transferred by the previous Operator. The rest of the equipment supplied by An Post had never been used by the previous Operator.

Account holder records were not transferred from the previous Operator. The information for each individual account holder or customer can only be accessed in a post office when the customer presents for example their post office book. The same principle applies to customers of AIB who can use the services of the post office. At no time was there a transfer of customer files/data as all of that information is held on the An Post central server.

Nothing owned or previously owned by the previous Operator transferred to the Respondent.

The way in which the Respondent operates the post office differs significantly from the previous Operator. It is at a different premises, the management and staff are completely different, the opening hours are different, and the business model is different with the Respondent relying on a significant level of cross purchasing between the supermarket and the post office. Commission on sales has reduced and there is now a greater focus on sales of An Post Insurance and An Post credit card services than there was or needed to be under the previous Operator.

Legal Precedents.

In its written submissions the Respondent cited and gave detailed reasons why precedent decisions should apply in this case in support of the contention that a transfer of undertakings did not apply to the Respondent.

Suzen;Spijkers;ADJ00004491-A Medical Practice Nurse v A General Practitioner; Ryan v O’Flaherty UD354/2003;Marai Scanlon v Edwina Kelly UD 134/2004;Cannon vs Noonan Cleaning Ltd and CPS Cleaning RP327/98;Sicherheit and Sicherheitdienst-C-247/96;Liikenne v Liskojarvi and Juntunen and copies of the Decisions/Determinations relied on were provided at the hearing and the arguments related to the individual precedents cited were set out in the submission at the hearing as were relevant sections of the Regulations.

Following the hearing, a further submission was requested of the Respondent by the Adjudicator in seeking a view as to why the Labour Court Determination in the case of Mary Dunne and the Department of Social Protection and Family Affairs upheld by the High Court in no. 173 MCA should not apply in the current case with particular reference to the case of Stitching v Bartol and Others C-29/91. An extensive written submission was received on setting out the differences between the two sets of circumstances.

Paragraph 151 in concluding the submission stated:

“151. The Respondent reiterates and relies on Paragraph 86 of the Respondent’s previous submission and submits that on that basis and on the basis of the Respondent’s Previous Submission as a whole and this additional submission and in accordance with the principles first set out by Spijker and expanded upon by Suzen, TUPE has no application this case.”

Paragraph 86 of the submission at the hearing is as follows:

“86. In light of the above it is respectfully submitted that whether the business in question here is a labour intensive or an asset reliant business and/or a combination of both, no transfer pursuant to TUPE arose as there was no transfer whatsoever of any employees, or any assets, or any significant assets.”

The core of the Respondents case is captured in paragraph 86 to the effect that there was no transfer of assets or employees as between employer A and the Respondent B in this case taking account of the attendant points set out in the Facts.

The Respondent in the present case denies that a TUPE took place and has provided detailed submissions in this regard.   Ultimately the Respondents defence centres on two elements which are commonly considered as part of the examination of the factors in determining whether a TUPE has occurred. Those two factors are : a denial of a transfer of assets or any significant assets and no transfer of employees. These two factors require examination but are not the only factors which require exploration in ascertaining whether a Transfer of undertakings took place.

In consideration of the question as to whether there was a transfer of undertakings from employer A to the Respondent B the tests are set out in the ruling known as ‘ Spijkers’ (Spijkers vs Gebroe Benedik Abbatoir CV).   In examining this matter, I must consider the seven tests set out in that case   which are commonly used in determining whether a transfer of undertakings has occurred and particularly arise where the change stems from a change of contractor providing a service.

1. Was the undertaking a stable undertaking, with ongoing life of its own?

The complainant in the present case was employed by employer A to work in the post office. When employer A decided to retire, she advised the complainant that the post office service would continue to exist in the town but that the respondent B would be operating the post office service and would become the postmaster. It Is not denied that respondent B became postmaster or that he began operating post office services on 15th of April 2019.

In addition, the respondent advised the hearing that he became the operator of post office service following a contractual agreement with an Post that he would provide such services.

The respondent in its submissions refers to Extracts 12 to 15 from Spijkers as set out by the Labour Court in the Department of Social Protection Case provide as follows:

“12. Consequently, a transfer of an undertaking, business or part of a business does not occur merely because its assets are disposed of.     Instead it is necessary to consider, in a case such as the present, whether the business was disposed of as a going concern, as would be indicated, inter alia, by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.

The respondent asserts that   “It is for the national court to make the necessary factual appraisal, in light of the criteria for interpretation set out above, in order to establish whether or not three is a transfer in the sense indicated above.

15 Consequently, in reply to the questions submitted it must be held that Article 1(1) of the Directive No 77/187 of 14 February 1977 must be interpreted as meaning that the expression’ transfer of an undertaking, business or part of a business to another employer envisages the case in which the business in question retains its identity. In order to establish whether or not such a transfer has taken place in a case such as that before the national court, it is necessary to consider whether, having regard to all the facts characterizing the transaction, the business was disposed of as a going concern, as would be indicated inter alia by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.”

- it is asserted that the “type of business or undertaking” operated by the Respondent is different to that which was operated by the Outgoing Contractor (A) in circumstances where the Respondent operates pursuant to a different business model.

It is also submitted that it is of note that the type of business in the instant case is remarkably different to the type of business in the Department of Social Protection Case with the type of business in the instant case having a commercial focus i.e. the provision of goods and services with the ultimate aim of making a profit.

The complainant in this case was employed by employer A to work in the post office. When employer A decided to retire, she advised the complainant that the post office service would continue to exist in the town but that the respondent B would be operating the post office service and would become the postmaster. It Is not denied that respondent B became postmaster or that he began operating post office services on 15th of April 2019.

In addition, the respondent advised the hearing that he became the operator of post office service following a contractual agreement with an Post that he would provide such services.

An Post is a State company operating among other services a network of retail outlets through which several of its services and the core purpose of its business are provided. An Post provides services for others such as banking for AIB customers, the collection of fees for TV and dog licences and the distribution of certain social welfare payments. It is understood that these services were offered by employer A before she retired and were then offered by Respondent B when he began operating the post office.   In addition, each person with whom An Post enters into a contract takes on the title of Postmaster of Postmistress as the case may be.  Each contracted operator is required to provide their own premises and their own staff.   The conclusion in this case is that the Respondent has all of the characteristics of a franchisee, in this case enabled by and in contract with, An Post.

One definition of a franchise is that it is a type of licence that a franchisee acquires to allow them to have access to a business’s proprietary knowledge, processes, and trademarks in order to allow the party to sell a product or provide a service under the business’s name.

Once this definition is applied to the business operated by the Respondent, then the stability of the undertaking must be seen in the context of the decision of An Post to offer the contract for the franchise to another operator in the same town notwithstanding the retirement of the previous franchisee.  

And it is submitted that the Respondent B who is a business owner took over the franchise in order to operate two very different businesses on the one premises as a business proposition. Essentially, the Respondent is operating a part of a business in his capacity as a franchisee.

Accepting that the franchisee does not entirely control the stability of the undertaking the concept of the franchise as part of the business of An Post does have a life of its own and has a stability stemming from a large corporate business.

The franchisee, as in franchise operations, does not have the authority or capacity to operate independently of An Post and to this extent does not meet the definition set in the Spikers case where it is required that it would have an ongoing life of its own.

However, it is can be viewed as a stable undertaking within the context of the current contract and given the decision of An Post to reissue that contract as recently as 2019 when it is a matter of public knowledge that many of the contracts for operating post offices were not being renewed on the retirement or redundancy of the franchisee in other locations on commercial grounds where the operation was no longer viable on the basis of reduced footfall.

2. Has the entity retained its identity?

Yes. It’s identity is exactly the same as, what was post office continues to be a post office and what is understood by a post office and the services provided by a post office under the previous operator A continue with the Respondent B.

3. Have some or all of the staff been taken over by the new employer?

No. From the information available the complainant was the only one of the previous employees to be offered a position by the Respondent though the respondent asserts that this was a completely new position, on   different terms and conditions of employment to those enjoyed by the complainant when working for A.  It is submitted that discussions took place between the complainant and respondent regarding the complainants proposed employment by the respondent, but it is clear from the letter issued to the complainant by the respondent dated 9th of April 2019 and received by the complainant on the 12th of April 2019 that the respondent decided not to employ the complainant.

If I conclude that there was a transfer of undertakings, then it follows that the Complainant was dismissed by the Respondent.   It appears that the respondent following discussion about the complainants proposed new terms and conditions decided not to take her into his employment, however it would be wholly disproportionate to permit the respondents refusal to take on the Complainant to defeat the purpose of the transfer of undertakings.

It is important to stress that this Respondent was on notice from the previous franchisee or employer of his obligations under the transfer of undertakings, but yet he made a conscious decision that those Regulations did not apply to him and equally consciously decided not to take on the Complainant.     In the context of the overall set of facts allied the facts as they apply to the case, the absence of applicability of this element of the Spikers decision cannot be justifiably used to defeat the Complaint.

4. Has the customer base transferred?

The Respondent asserted that a number of customers did not transfer to him and that it was open to them to choose to do their post office business elsewhere. Nonetheless, it is well recognised that the main customer base for any post office lies within its geographical area and there is no reason to believe that the overwhelming majority of those who availed of the post office service provided by previous operator in one part of the town on a Friday did not then follow the service to the new operator from the following Monday or at some point thereafter. It is reasonable to conclude that a significant proportion of the customer base transferred and in arriving at this conclusion, it is understood that the post office operated by the Respondent is the only post office in the particular geographical location.

5. Are the activities post-transfer similar to those carried out before the transfer?

Yes. Consistent with the transfer of the identity and the conclusion that it is a franchised operation, a post office provides the range of services dictated by An Post. The Respondent’s contention that the emphasis on different products and the location of the service, i.e. within a supermarket distinguished his operation from that of the previous operator, does not alter the fundamental activities of a post office albeit there may be a different emphasis or a different approach by an individual operator in different towns depending on the location.

6. Has there been an interruption of the activity?

No, except to the extent that the previous operator A did not open on Saturday 10th April 2019. This amounts to a difference of approximately a half day of interruption of the activity. This amounts to a negligible interruption of the activity.

7. Has there been a transfer of assets?

By definition a franchisee receives assets from a franchiser. In this case the franchisee was provided with access to the proprietary knowledge, processes and trademarks of the franchiser in order to enable the operation by the Respondent of the An Post service, including the logos, assets for sale in the form of stamps, licences and all of the paraphernalia which is required to provide the postal and ancillary services delivered through the An Post retail network.

It is argued by the Respondent that the physical assets in the form of the premises of the previous operator A or would be transferor did not transfer to the Respondent. However, the premises in individual contracted post offices does not form part of the An Post business and is not part of the asset base of that business. The operator or franchisee is required to provide the building and therefore there was no physical asset of this nature to transfer.

In contending that the decision of the Labour Court in Mary Dunne v The Minister for Employment Affairs and Social Protection did not apply by way of a precedent, the Respondent contends that the transfer of client files in that case which were deemed to be an asset, marks a significant distinction between the basis of the Labour Court Determination and a significant distinction between the facts in the two cases in defining an asset.

It is accepted that hard customer files did not transfer between the previous franchise operator and the Respondent. It is accepted that the small amount of hard assets and stamps and other documentation which did transfer to the Respondent do not represent a significant asset transferring as between the previous operator and the Respondent.

However, the asset in any situation where a private operator is contracted to provide a service on behalf of An Post is access to the central server and system of An Post through which most of the services operate and without which the range of services operated by An Post cannot be provided. The equipment transferred, and any additional equipment and physical assets provided to the Respondent were provided to him by An Post, consistent with the conclusion that this was a transfer by An Post of part of its business from the previous franchisee to the new franchisee, the Respondent in this case.

The conclusion is that there was a transfer of assets from one part of the business operated by An Post to the Respondent as a franchisee and the terms of the test set in question 7 of Süzen is deemed to have been met.

Regulation 3 of the Transfer of Undertakings Regulations 2003 is found to apply to this case wherein it is stated at section (2):

“Subject to this Regulation, in these Regulations - “transfer” means the transfer of an economic entity which retains its identity; “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.”

While not perfectly meeting all of the tests set by Spijkers, the overwhelming conclusion is that there was a transfer of undertakings as defined by the Regulations at section 3(2) of the Regulations from the previous post office operator A in the same geographical location, the transferor, to the Respondent B in this case as the transferee.

This was a transfer where the term second generation transfer applies i.e. where a business decides to change its existing service provider.

Taking all the circumstances and evidence and submissions into account, I conclude that a transfer of undertakings did undoubtedly take place between employer A and the Respondent B.

Based on the conclusion that the Complainant was comprehended by the Transfer of Undertakings Regulations and that her employment transferred from her previous employer A as the transferor to the Respondent B as the transferee with effect from 12th April 2019 the matters to be decided upon are whether the Respondent B breached the Transfer of Undertakings Regulations, whether the Complainant was dismissed and whether that dismissal was unfair.

The complaints under the Transfer of Undertakings Regulations and the complaint under the Unfair Dismissals Act 1977 are interlinked in that the complaint under the TUPE regulations is one of dismissal related to a transfer.

The relevant sections of the transfer of undertakings regulations for the purposes of this Decision are at section 5:

‘5(1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or transferee and such a dismissal, the grounds for which are such a transfer, by transferor or a transferee is prohibited.

5(4) If a dismissal of an employee in contravention of paragraph(1), constitutes dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001(amended to 2016) relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.’

Given the conclusion that there was a transfer of undertakings from the previous post office operator in the same geographical location on the closing of one entity and the opening of the entity operated by the Respondent, it follows that the employment of the Complainant did, or ought to have, transferred from the transferor, her previous employer, to the Respondent as the transferee.

Instead however the complainants employment was terminated by the Respondent when he informed her that he would not be employing her and that TUPE did not apply. The Complainant was dismissed by the Respondent based on his erroneous interpretation of the Regulations and his decision that they did not apply in his case or to the Complainant.

The respondent in this case denies that TUPE is applicable but submits that he did meet with the complainant to discuss the possibility of employing her in a new position.  The respondent has also sought to assert that he complainant refused to accept the new terms and conditions of the role as proposed by the respondent asserting instead that she was entitled to enjoy the same terms and conditions as she had in her employment with the transferor. Following these discussions, the respondent notified the complainant by letter dated 9th of April 2019 that he would not be employing her.   The reason provided in this letter was that TUPE did not apply and that he had decided not to take on any employees.   This was again referred to in a letter from the respondent dated 9th of May 2019. This notification that the responden would not be employing the complainant amounts to a dismissal.  

Following on from the finding that there was a transfer of undertakings from the previous service provider to the Respondent in this case, Respondent A, it follows that the correct application of the Regulations would have seen the employment of the Complainant transfer from her previous employer A to the Respondent in this case. Furthermore, it follows that the employment of the Complainant was terminated by the Respondent in this case and, that as the Complainant was dismissed by the erroneous interpretation of the TUPE Regulations, it follows that her dismissal without notice and without any other reason, was unfair.

As specified under Regulation 5 of TUPE relief cannot be provided in respect of an unfair dismissal both under the TUPE Regulations and under the Unfair Dismissals Act.

Regulation 5(1) of the 2003 Regulations prohibits dismissals arising from transfers of undertakings (with the exception of those occurring for economic, technical or organisational reasons), providing that “The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited”.

Regulation 5 reflects Article 4 of Council Directive 2001/23/EC of 12th March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. Article 4 provides as follows:

1. “The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisations reasons entailing changes in the workplace. Member States may provide that the first subparagraph shall not apply to certain specific categories of employees who are not covered by the laws or practice of the Member States in respect of protection against dismissal.

2. If the contract of employment or the employment relationship is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship”.

Section 5 of the Regulation refers to dismissals:

5. (1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.

(2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.

(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

(4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001 relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

Having given a lot of consideration to all of the circumstances of this case and having regard to the totality of the evidence adduced by the parties, I am satisfied that the Respondent did contravene the Complainant’s rights under Section 5 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and that a dismissal did occur.

Accordingly I declare this claim to be well founded based on the evidence provided and I award the complainant €4,000 in compensation.

I declare that the complaint under the Transfer of Undertakings Regulations S.1. No. 131/2003-is well founded.  Accordingly, I award the complainant €4,000 in compensation.

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-00029384-005

26/06/2019

This claim relates to an allegation that the complainant current/ new employer (Transferee) did not ensure that her terms and conditions transferred from her previous employer.

The respondent in this case denies that a TUPE took place or that he was under any obligation to employ the complainant. The complainant has lodged a separate complaint in respect of the respondents failure to employ her following a transfer of undertakings from her previous employer. I have found in the complainants favour in this regard and have awarded her compensation in respect of her dismissal due to the respondents failure to employ her following the TUPE (see CA-00029384-007). It is clear from that complaint that the complainant did not work for the respondent due to his failure to recognise that a TUPE had taken place and following the transfer her employment was terminated. The complainant has already been compensated for her dismissal arising from the transfer and accordingly, I declare this claim to be not well founded.  

I declare that this complaint under the Transfer of Undertakings Regulations S.1. No. 131/2003-is not well founded.    

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-00029384-006

26/06/2019

This claim relates to an allegation that the complainant current/ new employer (Transferee) did not observe the terms and conditions transferred from her previous employer (Transferor).

The respondent in this case denies that a TUPE took place or that he was under any obligation to employ the complainant.   The complainant has lodged a separate complaint in respect of the respondents failure to employ her following a transfer of undertakings from her previous employer. I have found in the complainants favour in this regard and have awarded her compensation in respect of her dismissal due to the respondents failure to employ her following the TUPE (see CA-00029384-007).   It is clear from that complaint that the complainant did not work for the respondent due to his failure to recognise that a TUPE had taken place and following the transfer her employment was terminated. The complainant has already been compensated for her dismissal arising from the transfer and accordingly, I declare this claim to be not well founded.    

I declare that this complaint under the Transfer of Undertakings Regulations S.1. No. 131/2003-is not well founded.  

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

CA-00029384-001

26/06/2019

This claim relates to an allegation that the complainant was not notified in writing of a change to the terms of her employment.  

The respondent in this case denies that it was the complainants employer and in doing so denies that a TUPE took place or that he was under any obligation to employ the complainant. The complainant has lodged a separate complaint in respect of the respondents failure to employ her following a transfer of undertakings from her previous employer. I have found in the complainants favour in this regard and have awarded her compensation in respect of her dismissal due to the respondents failure to employ her following the TUPE (see CA-00029384-007). It is clear from that complaint that the complainant did not work for the respondent due to his failure to recognise that a TUPE had taken place and following the transfer her employment was terminated.   The complainant has already been compensated for her dismissal by the respondent following the TUPE and accordingly, I declare this claim to be not well founded.  

I declare that this complaint under section 7 of the Terms of Employment (Information) Act, 1994 is not well founded.  

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029384-002

26/06/2019

This claim relates to a claim of unfair dismissal following a TUPE.

The respondent in this case denies that he was the complainants employer and in doing so denies that a TUPE took place or that he was under any obligation to employ the complainant.

The complainant has lodged a separate complaint in respect of the respondents failure to employ her following a transfer of undertakings from her previous employer. I have found that TUPE did take place and I have in the complainants favour in this regard . I have awarded the complainants compensation in respect of her dismissal due to the respondents failure to employ her following the TUPE (see CA-00029384-007).

The complainant has already been compensated for her dismissal by the respondent following the TUPE and accordingly, I declare this claim to be not well founded.  

I declare that this claim is not well founded.  

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00029384-003

26/06/2019

This claim relates to a claim of discriminatory treatment on the ground of age in respect of access to employment.   While the complainant would be precluded from pursuing a claim of discriminatory dismissal as well as a claim of Unfair dismissal the within claim asserts that she was discriminated against in relation to getting a job.

The complainant has lodged a separate complaint in respect of the respondents failure to employ her following a transfer of undertakings from her previous employer. The respondent in this case denies that he was the complainants employer and has also denied that the complainants employment transferred to him following a TUPE.   Thus, the complainant has separately claimed that her employment automatically transferred to the respondent via a TUPE and that his failure to employ her amounts to a dismissal following a TUPE.   I have found in that decision that a TUPE did take place and I have found in the complainants favour in this regard . I have already awarded the complainant compensation in respect of her dismissal due to the respondents failure to employ her following the TUPE (see CA-00029384-007).  

The complainant is now seeking to assert that she was not employed by the respondent due to her age however the complainant has already been compensated for the respondents failure to employ her which she asserted amounted to a dismissal by the respondent following the TUPE and accordingly, I declare this claim to be not well founded.  

I declare that this claim is not well founded.    

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029384-004

26/06/2019

This claim relates to a claim by the complainant of in respect of a failure by the respondent to pay her minimum notice entitlement on termination of her employment.

The respondent in this case denies that he was the complainants employer and has also denied that the complainants employment transferred to him following a TUPE.  

The complainant has lodged a separate complaint in respect of the respondents failure to employ her following a transfer of undertakings from her previous employer. I have found in that decision that a TUPE did take place and I have found in the complainants favour in this regard . I have awarded the complainant compensation in respect of her dismissal due to the respondents failure to employ her following the TUPE (see CA-00029384-007).  

Section 4 of the Minimum Notice and Terms of Employment Act 1973 states;

”An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

a) if the employee has been in the continuous service of his employer for less than two years, one week,

I am satisfied from my decision in CA-00029384-007 that the complainant was unfairly dismissed without notice following the TUPE and that she did not receive the statutory payment in lieu of minimum notice and therefore the Act was contravened.

The complainant advised the hearing that she commenced her employment with the transferor A in June 2017 and that her employment was terminated in April 2019 when the respondent B refused to take her on as an employee following a transfer of undertakings (TUPE).     As the complainant had less than 2 years continuous service her notice entitlement amounts to one weeks pay.

Accordingly, I declare this claim to be well founded and I direct the respondent to pay the complainant the equivalent of 1 week’s pay in lieu of notice.

I declare this claim to be well founded and I direct the respondent to pay the complainant the equivalent of 1 week’s pay in lieu of notice.