ADJ-00019244

Complainant

Respondent

Anonymised Parties

A café worker

A café owner

Representatives

Adrian Twomey Jacob and Twomey Solicitors

Antoinette Smyth

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-00025111-001

18/01/2019

The Complainant worked in the Respondent’s café from 31st July 2017 until February 2018.

The Complainant’s average weekly wage was €345.73.

This complaint was received by the Workplace Relations Commission on 18th January 2019.

The Complainant commenced employment with the Respondent on 31st July 2017. She was employed as café worker. Her duties included baking, washing up, running and managing a café. The Complainant was a fulltime employee and worked varying hours. She was paid minimum wage rates (€9.25 per hour initially rising to €9.55 per hour later). The Complainant was dismissed on 5th February 2018 in anticipation of a pending transfer of the undertaking in which she was employed. The Respondent runs the café which incorporates a service station with a shop, a camping and caravan park, a fuel yard and a number of buildings which are leased out to other business owners. The second named Respondent (the transferee) runs a café. He leases the building and catering equipment from the first named Respondent. The Complainant also runs a number of other catering businesses. The Complainant submitted her complaint to the WRC on 18th January 2019. She complained against the Respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 that she had been dismissed due to the Respondent leasing the entity to the Transferee. The Respondent also failed to inform the Complainant in writing of the transfer of the business as required under the legislation.

THE FACTS

The Complainant commenced her employment with the Respondent on 31st July 2017.   She was never furnished with a contract of employment or statement of her terms and conditions of employment.   Neither was she furnished with an employee handbook containing any of the policies or procedures of the Respondent. In fact, the Complainant is not aware of the Respondent having any policies or procedures governing grievances, disciplinary matters, dignity at work etc. The Complainant’s role initially was to organise and get the café up and running as it had only been open for approximately two months at that point. There was one other person employed in the café, the chef.   The Complainant’s normal initial working hours were from 9am to 5.30 pm Monday to Friday although this would soon change. The Complainant’s gross average weekly wage was €345.73. In mid-August 2017 the chef left his employment and returned to his home country. The Respondent hired a local chef who covered the role for a period of just three weeks. No further staff were hired for the café. From that point on, the Complainant was expected to cook, bake, serve customers, clean, wash up, ensure compliance with HACCP (hazard analysis and critical control points) food safety standards, prepare meals, order supplies and prepare accounts. The Respondent also had the Complainant do the vegetable and salad shopping at a supermarket located 17km away. He informed her that he would pay her for her travelling expenses, but this never happened. The Complainant continued to discharge all functions in the café up until her dismissal in February 2018.

DISMISSAL

The Respondent telephoned the Complainant on Saturday 3rd February 2018 and asked her to meet him downstairs in the café. He informed her at the meeting that he was leasing out the café to someone else.   He requested that the Complainant not buy any more stock as the transfer would most likely happen within the following two weeks. When the Respondent left the Complainant realised that she had not asked him about her employment. She telephoned him and asked him and was told that he was terminating her employment. The Respondent contacted the Complainant on the Monday evening (5th February 2018) to confirm that the lease was going ahead but that the café remained closed. The Complainant met the Respondent on Tuesday 6th February 2018 as she was entering her apartment. He apologised for what was happening. The Complainant told him that she was unhappy and believed she had rights under the transfer of undertakings regulations and she would be seeking legal advice. He replied, saying that he didn’t think she would be interested in that at all.   The Complainant said she was and that she would be getting legal advice to which he responded, “oh we are going all legal now, are we?”.   The Respondent went over to his car and tried to give the Complainant her letter of termination. She refused to take it from him until she received legal advice. The Respondent gave the letter of termination to the Complainant’s son the following evening when her son went into the shop.

Meeting with the Transferee

The Complainant was contacted by the Transferee in early February 2018 and she met with him.   During this meeting, he asked the Complainant to put together a CV for him. The Complainant did so and met him again about one week later. During that meeting he told her that he would not be taking on staff at that time (a statement that appears to be contradicted by his placing an advertisement looking for management and full and part time floor staff for the café on Facebook on 10th February 2018). The Complainant told him that she had rights arising from the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.   At that point, he told her that he would have to get advice on the matter and the meeting ended. Following this meeting, the Transferee telephoned the Complainant numerous times requesting that she sign a document releasing him from his responsibilities following the transfer of the café. In fact, one such telephone call occurred while the Complainant was meeting with her Solicitor for the first time to seek legal advice on 27th February 2018. During one of the many times he called the Complainant requesting her to sign the document, the Transferee told the Complainant that the Respondents would leave the café closed for 6 months and 1 day in order to “get around” their obligations under the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003. It is assumed that the Complainant was of the belief that his obligations under the 2003 Regulations and the Acquired Rights Directive would expire six months after the Complainant’s dismissal.

Re-Opening of Café

In December 2018 an advertisement for staff was broadcast on Radio by the Transferee. The ad stated that a café would be opening and that it would be hiring staff to fill a number of positions including café manager, waiting staff and cooking staff. The Respondent appears to have re-opened the café under a different name on 18th February 2019. The lease agreement in the Transferee’s company name was dated 28th November 2018 and is to last until 17th November 2023. It is noted that the catering equipment which was used in the café by the Complainant is also included in the lease.

Consultation

Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides that:

1)      The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of –

a)       The date or proposed date of the transfer

b)      The reasons for the transfer

c)       The legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

d)      Any measures envisaged in relation to the employees

2)      The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

3)      The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

4)      Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event,, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

5)      Where there are no employees’ representatives in the undertaking or business of the transferor or as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

6)      Where, notwithstanding paragraph 5) there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following

a)       The date or proposed date of the transfer

b)      The reasons for the transfer

c)       The legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee

d)      Any measures envisaged in relation to the employees

7)      The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations”.

The Respondents failed to comply with their obligations under Regulation 8 resulting in the Complainant being unclear as to exactly what was happening and when it was happening.

Dismissal

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”. The first named Respondent made it abundantly clear to the Complainant in his telephone call on her on 3rd February 2018 that the café would be leased to another person within a short amount of time. When she contacted him later that evening, he was also quite clear that she was being dismissed because that is fact. That is precisely the type of dismissal that the Regulations and Directive seek to prohibit. The first named Respondent deliberately and unashamedly dismissed the Complainant in advance of the transfer. The second named Respondent (transferee) told the Complainant that he would not be taking on staff at that time. However, unknown to the Complainant at that time, he placed an advertisement on Facebook page on 10th February 2018. It advertised vacancies for the manager’s position and for full and part time floor staff for the café. The ad stated that the café would be opening “shortly”. When the Complainant referred to her rights under the Regulations, the Respondents sought to evade their obligations by delaying the transfer. The Complainant was expressly informed that they would wait for six months and one day. In that regard, the Complainant relies on the decision of the Court of Justice in Bork International v Londmodtagernes Garantifond, Case 101/87, in which the Court held (in paragraph 18) that “… the employees of the undertaking whose contract of employment or employment relationship was terminated with effect from a date prior to that of the transfer, contrary to Article 4(1) of the directive, must be regarded as still in the employ of the undertaking on the date of the transfer, with the result, in particular, that the employer’s obligations towards them are automatically transferred from the transferor to the transferee in accordance with Article 3(1) of the directive”.  In a recent ruling in matter of Colino Siguenza v Ayuntamiento de Valladolid (C-169/18) the Court of Justice found that a five month cessation of activities does not prevent a transfer of undertaking under EU law.   The Court found despite a company ceasing operating and dismissing all of its employees, that when a new company began trading in the same premises using the same equipment five months on that this scenario was capable of being a transfer of an undertaking.

Time Limit

The first named Respondent argues that

1.       The within complaint is out of time

2.       The Complainant has referred multiple claims in relation to the same matters.

The Complainant submits that: She was not informed and consulted with by the transferor and transferee as required under the Regulations and the Directive. This was an obvious breach of the Regulations and the Directive and left her in a situation where she was unclear as to exactly what was happening. She sought legal advice.   Some time later they informed her that they acted for the second named Respondent and could not continue to advise her. She then sought legal advice from another firm of Solicitors. At that time, it was not clear whether or not a transfer had actually taken place. Complaints were submitted to the WRC on 12th July 2018 under the Terms of Employment (Information) Act (in relation to the non-provision of a statement of terms and conditions of employment), the Organisation of Working Time Act 1997 and the Minimum Notice legislation. Those claims have since been heard by the WRC and the Labour Court on appeal. The Complainant was successful with her claims. In circumstances where the Complainant had not been furnished with the requisite information by the Respondents and was unclear as to whether or not a transfer had yet taken place, she also referred a complaint to the WRC under the Industrial Relations Act 1969. The first named Respondent objected to the WRC hearing same. The matter was referred to the Labour Court and has been adjourned pending the outcome of the instant matter. The Complainant later discovered that the transfer had in fact taken place and that the second named respondent was advertising for staff. At that juncture, the instant complaints were filed (on 18th January 2019). That date of filing as well within a year of her “dismissal” in February 2018.

The first named Respondent argues that the claims are out of time. In that regard, the Respondent submits that:

a)       In light of the decision in the Bork International case, she was still in employment on the date of the transfer and so the six month time limit only started to run when the transfer took effect and the second named Respondent failed to continue her employment.   When was the date of transfer? It now appears that a lease was signed on 28th November 2018 (less than six months before the instant claims were submitted). In those circumstances, as a matter of law, the Complainant should have been paid up to at least that date and was then effectively dismissed in breach of the Directive and the Regulations.

b)      Even if that were not the case, the applicable time limit may be extended out to up to 12 months pursuant to section 41(8) of the Workplace Relations Act 2015 if the Adjudication Officer “is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. In the instant case there is certainly reasonable cause in circumstances where the Complainant was not informed or consulted with and was left in the dark as to what was happening until her Solicitors heard the advertisement on local Radio during the Christmas period.

Paragraph 10(5) of the Regulations:

The first named Respondent relies on paragraph 10(5) of the Regulations but does not quote it in its entirety.

The Respondent opened a café in June 2017 in the same building as a service station in Co Wexford.   The Respondent accepts that it would have been in and around 31st July 2017 that the claimant commenced employment with him. The claimant’s gross average weekly wage was €345.73 and the Respondent understands this is not in dispute. The Claimant has previously brought other claims to the WRC on 12th July 2018 and same was heard by way of an Adjudication Hearing on 26th October 2018 and also on appeal to the Labour Court on 28th February 2019 and the said claims have now concluded. As part of the Claimant’s application to the WRC on 12th July 2018 the Claimant sought to refer an Industrial Relations claim to adjudication and she said claim was in relation to the same set of facts as the present complaint and an alleged transfer of an undertaking/business. At the time the Respondent objected to the said complaint being considered under adjudication and a copy of his objection was forwarded to the WRC on 31st July 2018 and the WRC responded on 10th August 2018 noting the Respondent’s objection. Thereafter the Claimant made a referral under Section 20 of the Industrial Relations Act 1969 to the Labour Court and the said referral came before the Labour Court on the same date as the appeal of the Claimant in respect of other claims on 28th February 2019. Prior to the Labour Court hearing on 28th February 2019, the Claimant lodged the present complaint with the WRC on 18th January 2019 and at the Labour Court hearing on 28th February 2019 the Claimant was permitted to adjourn her Section 20 referral to the Labour Court pending the outcome of the present complaint.

PRELIMINARY OBJECTION – COMPLAINT IS OUT OF TIME

The present complaint was brought by the Claimant on 18th January 2019 almost one year after her employment ended with the Respondent in February 2018. As noted by the WRC in its correspondence to the Respondent on 21st January 2019 an Adjudication Officer may not entertain a complaint/dispute under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulations) if it has been presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. In the present complaint the Claimant alleges that her specific complaint is that she was dimissed by her previous employer (Transferor) (being the Respondent) on the grounds of the transfer of the business/undertaking. The Respondent strongly refutes that claim but also notes that as the date of the alleged dismissal is 5th February 2018 therefore the claim has not been presented within the statutory six month period. It is noted that an Adjudication Officer may entertain a complaint if he/she is satisfied that the failure to present the complaint/dispute within the statutory timeline was due to reasonable cause. In her original complaint, on 12th July 2018, the Claimant alleges that she was advised that the business would re-open in 6 months and 1 day. The Claimant has originally stated that this was advised to her by the Respondent but has now clarified that this was actually advised to her by a third party, Mr TMcC. After the statutory 6 month period elapsed, the Claimant states she heard a radio advert in December 2018 advertising that a café would open at the same premises in February 2019 and this would appear to be the basis on which the Claimant lodged the present complaint on 18th January 2019. On both occasions on which a complaint was made by the Claimant (i.e. on 12th July 2018 and 18th January 2019) the premises had not reopened but rather the Claimant was relying on information she had heard that the premises may reopen in the future. Therefore, the only additional information that became available to the Claimant after the expiration of the statutory 6 month period was that she heard an advertisement on the Radio that a café was opening up in February 2019, being within the same premises from which the Respondent’s café had traded prior to its closing in February 2018. We submit that this information is of the same nature and kind as the information available to the Claimant when she made the original complaint on 12th July 2018 (i.e. the possibility of the café, or a café in the same premises, reopening at a later date). Therefore, in circumstances where the Claimant herself alleges she was advised prior to the expiration of the statutory six month period that the café would reopen, the Claimant has not shown why the claim was not presented within the said statutory period. For the avoidance of doubt, the Respondent does not accept that there has been any transfer of an undertaking/business or that this was the ground for the Claimant’s dismissal, rather as set out in greater detail below, the café being operated by the Respondent was losing money on a daily basis and he therefore had no option but to close the premises and let the Claimant go.

SUBMISSIONS IN RESPECT COMPLAINT

As set out above the Respondent opened a café in June 2017 in the same building as a service station.   The Respondent accepts that it would have been in and around 31st July 2017 the Claimant commenced employment with him. At the time of opening the café, the Respondent took on a chef but within a very short period of time the chef returned to his home country at very short notice to the Respondent and it is accepted thereafter the Claimant worked on her own in the café from the end of August 2017 until the end of her employment in February 2018. However, it is not accepted that the Claimant was dismissed by reason of any transfer of an undertaking or business. It is the Respondent’s position that the café was not making money and was in fact losing money and it was for that reason he was seeking to lease the café to a third party. The Respondent exhibits till reads for the café which show that the café was not making money and was on many days exceptionally quiet. In relation to the specific details surrounding the Claimant’s employment ending, the Respondent believes he spoke to the Claimant on Saturday 3rd February 2018 in relation to the café not doing well and that it was his intention to close the café in two weeks’ time and therefore she was not to buy any stock.   The Respondent believes he may have mentioned the possibility of leasing the premises to a third party but at that stage there was only a possibility of the premises being leased and nothing had been agreed, whether informally or otherwise with any third party.   The Respondent did advise the Claimant on 3rd February 2018 that he would have to let her go but the reason for this was that the business was losing money and he could not continue to keep it open, rather than any transfer of the business/undertaking. On Monday 5th February 2018, the Respondent attending at his shop/service station and the café but there was no sign of the Claimant and as he had no other staff to open the café the café did not open that day. The Respondent telephoned the Claimant that morning and he recalls she indicated that she had a medical appointment and then was thereafter going to get legal advice about her employment. The Claimant did not return to work that day and the Respondent prepared a letter of termination dated 5th February 2018 for the Claimant but when he tried to give it to her on 6th February she refused to accept it and he had to give it to her son the following day for him to give to her. Ultimately, the premises thereafter remained closed and a lease was only entered into by the Respondent some nine months later, with a commencement date of 18th February 2019. Therefore, the premises remained closed for over a year from Monday 5th February 2018 until 18th February 2019. In her submissions under the Section 20 referral to the Labour Court, the Claimant appeared to suggest that the delay in entering into a lease was in some way an attempt by the Respondent to avoid the obligations of the Regulations.   However, the Respondent respectfully submits that it is not credible that he would keep the premises closed for over a year to avoid the Regulations. The simple fact of the matter is that the café was losing money and the Respondent was not in a position to keep the premises open or continue to employ the Claimant. In addition, when the Respondent made the decision to close the café and inform the Claimant on 3rd February 2018 that he was letting her go, it was his intention not to close the café for a further two week period which would have given the Claimant over and above the statutory notice she was entitled to and would have also provided her with a period of time in which to try to source other employment. However, on Monday 5th February 2018 the Claimant did not attend work and as the Respondent did not have other staff to open the café, this precipitated the early closure of the premises.

PARAGRAPH 10(5) OF THE REGULATIONS

As set out above, it is not accepted by the Respondent that the grounds of the dismissal of the Claimant was due to any transfer of undertaking/business.

Paragraph 10(5) of the Regulations sets out that:

“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 that regard, the Respondent refers to the lease dated 28th November 2018 as entered into by the Respondent and XXXXX Ltd in relation to the premises in which the previous café run by the Respondent was located with a commencement date of 18th February 2019. If there was to be a finding that there was a transfer of the undertaking/business and that the grounds of the dismissal was the said transfer, which of course is strongly refuted by the Respondent, by reason of the paragraph 10(5) of the Regulations, the Respondent is not the employer for the purposes of the Regulations and therefore any complaint under Paragraph 10 of the Regulations against the Respondent cannot be upheld.

CONCLUSION

The Respondent wishes to reiterate there was no transfer of an undertaking/business and that the Claimant was not dismissed due to any such transfer. Rather what occurred which we believe will be borne out by the evidence, was that the café was not making money and it was necessary for the Respondent to close the café and let the Claimant go. Whilst at the time of closing of the café in February 2018, the Respondent was hopeful of leasing the premises in the future, a lease was ultimately not entered into until some nine months later (with a commencement date over a year later).   Therefore, we respectfully submit that no transfer of an undertaking/business could be deemed to have occurred in such circumstances. In addition, it has now come to the Respondent’s attention that the new tenant of the premises, has ceased trading from the premises since 12th August 2019 and the Respondent understands the closure was as a result of poor trading conditions.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) is possibly the most complex piece of employment legislation and to quote one eminent barrister is “A series of confusing and sometimes unclear indicators regarding what must be taken into consideration” (Kerr). In this instance the Complainant commenced employment with the Respondent on 31st July 2017.   She was employed as café worker.   Her duties included baking, washing up, running and managing a café. The Complainant was a fulltime employee and worked varying hours. She was paid minimum wage rates (€9.25 per hour initially rising to €9.55 per hour later). The Complainant was dismissed on 5th February 2018 and she contends that this was in anticipation of a pending transfer of the undertaking in which she was employed.

The Respondent ran the café which incorporates a service station with a shop, a camping and caravan park, a fuel yard and a number of buildings which are leased out to other business owners.

There are two questions to be answered:

1.       Was there a transfer of undertakings and if so?

2.       The date of the transfer has to be established.

The Respondent telephoned the Complainant on Saturday 3rd February 2018 and asked her to meet him downstairs in the café. He informed her at the meeting that he was leasing out the café to someone else.   He requested that the Complainant not buy any more stock as the transfer would most likely happen within the following two weeks. When the Respondent left the Complainant realised that she had not asked him about her employment. She telephoned him and asked him and was told that he was terminating her employment. The Respondent contacted the Complainant on the Monday evening (5th February 2018) to confirm that the lease was going ahead but that the café remained closed. The Complainant met the Respondent on Tuesday 6th February 2018 as she was entering her apartment. He apologised for what was happening. The Complainant told him that she was unhappy and believed she had rights under the transfer of undertakings regulations and she would be seeking legal advice. He replied, saying that he didn’t think she would be interested in that at all.   The Complainant said she was and that she would be getting legal advice to which he responded, “oh we are going all legal now, are we?”.   The Respondent went over to his car and tried to give the Complainant her letter of termination. She refused to take it from him until she received legal advice. The Respondent gave the letter of termination to the Complainant’s son the following evening when her son went into the shop. The situation described above is very indicative of a transfer of undertakings and in this regard the Respondent becomes the Transferor. It is clear at this stage that it was the intention of the Respondent to lease the business as a going concern. Regulation 4(1) reads as follows: “The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee” Regulation 5(1) reads as follows: “The transfer of an undertaking, 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 transferee is prohibited”. In relation to a transfer date the representative for the Complainant has cited some recent case law - Colino Siguenza v Ayuntamiento de Valladolid (C-169/18) the Court of Justice found that a five month cessation of activities does not prevent a transfer of undertaking under EU law.   The Court found despite a company ceasing operating and dismissing all of its employees, that when a new company began trading in the same premises using the same equipment five months on that this scenario was capable of being a transfer of an undertaking.

Colino Siguenza v Ayuntamiento de Valladolid (C-169/18) – this case is not straight forward:

The Court of Justice of the European Union has held that, contrary to the opinion of Advocate General Tanchev in December 2017, a gap of five months in an undertaking’s activities does not necessarily preclude a transfer for the purposes of the Acquired Rights Directive (2001/23/EC) (ARD). The Claimant, Mr Siguenza, worked as a teacher at a music school in Spain. The School was run by the local authority until 1997 when it outsourced to a contractor. Following poor financial performance, the contractor dismissed all the staff in April 2013 and subsequently ceased to operate. At the start of the next academic year in September 2013 the management of the school was given to a new contractor, who employed a different staff team. The CJEU considered that in this case there could be a transfer of an economic entity within the meaning of the ARD. The Court took into account the fact that the premises and other assets of the business were owned by the local authority at all times, and that three months of the closure had been school holidays. However, the CJEU also held that the claimant’s dismissal appeared to be for an economic, technical or organisational (ETO) reason. The final decisions on both points were referred back to the Spanish Courts. In the instant case I note that lease agreement was signed by the Respondent on 28th November 2018 and the lease arrangement commenced on 18th February 2019. On reading through the terms of this lease agreement I note that assets were included: hot counter, cold counter, fridges, dishwater, barista coffee machine, cooking hob, fryer, full range of pots and pans, catering utensils tables, chairs and a cash register. In Celtec Ltd v Astley and Others (Case C -478/03) [2005] ECR 1 – 4389, the ECJ held that art 3(1) of Directive 77/187 must be interpreted as meaning that the date of a transfer within the meaning of that provision is the date on which responsibility as employer for carrying on the business of the unit transferred moves from the transferor to the transferee. That date is a particular point in time which cannot be postponed to another date at the will of the transferor or transferee. For the purposes of applying that provision, contracts of employment or employment relationships existing on the date of the transfer between the transferor and the workers assigned to the undertaking transferred are deemed to be handed over, on that date, from the transferor to the transferee, regardless of what has been agreed between the parties in that respect.  In applying Celtec Ltd v Astley and Others (Case C -478/03) [2005] ECR 1 – 4389 to the instant case the date of transfer was 18th February 2019. This complaint was received by the Workplace Relations Commission on 18th January 2019, approximately one month before any transfer of undertaking took place. I find that from this fact I must decide that the complaint is not well founded and therefore fails.

I decide that the complaint is not well founded and therefore fails.

TUPE