ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021431
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaning Operative | A Facilities Management Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00027845-001 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00027845-002 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027845-004 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00027845-005 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027845-006 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027845-007 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027845-008 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00027845-009 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00027845-010 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00027845-011 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00027845-012 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00027845-013 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00027845-014 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00027845-015 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00027845-016 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00027845-017 | 17/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00027845-018 | 17/04/2019 |
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-00027845-019 | 17/04/2019 |
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-00027845-020 | 17/04/2019 |
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-00027845-021 | 17/04/2019 |
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-00027845-022 | 17/04/2019 |
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-00027845-023 | 17/04/2019 |
Date of Adjudication Hearing: 19/11/2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969, 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:
A complaint was lodged with the WRC on 17th April 2019. This case was the subject of two hearings. The first hearing took place on 15th August 2019, at that first hearing the Respondent argued that they were not the Complainant’s employer. Having considered the matter a second hearing was arranged. This second hearing took place on 19th November 2019. The Complainant submits that she was transferred to the Respondent’s employment in a Transfer of Undertakings and was de facto made redundant by her new employer sometime after the transfer. The Respondent denies that any transfer took place and they are not the correct Respondents. Several complaints submitted by the Complainant to the WRC were duplicate claims which were withdrawn by the Complainant at the second hearing.
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Preliminary Point
The Respondent put forward that the Complainant was not nor ever was one of their employees.
From the evidence adduced below I am satisfied that a Transfer of Undertaking did take place and the Complainant should have transferred to the Respondent Company when the contract she was working on transferred to the Respondent.
Summary of Complainant’s Case:
In summary, the Complainant submits that she commenced with Company M as a cleaner in April 2017 and that a Transfer of Undertakings to the Respondent Company took place on 19th November 2018. However, within a very short time of the transfer it became apparent to the Complainant that she was unable to complete her new duties as they required her to use equipment that demanded a physicality she did not possess. Having discussed the matter with the Respondent the Complainant was put on “standby” but was eventually informed that it was the Respondent Company’s view that no transfer had taken place and no employment relationship existed between the Complainant and the Respondent Company. The Complainant submitted that from April 2017, she worked for Company M cleaning Company A’s offices, from 06.30 am to 9.00 weekdays, 12.5 hours per week and was classed as a full-time employee by Company M. On 9th November 2018, the Complainant received an email from the HR Department of Company M, the Subject title was, Transfer of Undertakings. The email informed the Complainant of a change of the cleaning contractor for Company A. In advance of the contract changeover the Complainant was sent a letter from Company M, dated 13th November 2019, titled: Re; Type – Confirmation of New Provider. The Complainant signed and returned the Declaration of Consent to HR. The Complainant submits that she agreed to work for the Respondent Company cleaning the offices of Company A on the same terms, conditions and pay as she had received working for Company M. On the morning of the cleaning contract changeover, 19th November 2018, the Complainant received a call from the Respondent Company requesting she report to work Laster that day. Coinciding with the cleaning contract change over, Company A moved their offices. The Complainant’s hours of work were changed from early morning to evening hours. The Complainant submits that she started working at the new location on 19th November 2018. After working one week, 3 hours per day (15 hours) on 23rd November 2018, she was instructed by the Respondent Company not to come into the office to clean after the weekend as there was a contract dispute between the Respondent Company and Company M. The Complainant remained at home on standby. On 23rd January 2019, the Complainant emailed the Respondent Company reminding them that she was on standby to return to work and was reminding them that she was due to be paid. This email went unanswered. On 14th February 2019, the Complainant wrote to the Managing Director of the Respondent company reminding the company of their employment responsibilities. The following day the Complainant received an email from a member of the Respondent Company’s HR team. The Complainant responded on the same day and meeting was arranged. On 19th February 2019, a meeting took place between the Complainant, the Respondent Company’s HR Manager, Operations Director and the Complainant, in the Respondent Company’s offices. The Complainant submits that the outcome of the meeting was unsatisfactory from her perspective. She was offered €162.00 for the 15 hours she had worked; no payment of her tax and pension contributions; nothing for the period she had spent on standby (since 23rd November 2018) and no invitation to return to her employment. The Complainant believes the Respondent Company had dismissed her and made her redundant from her office cleaning job following her transfer from Company M to the Respondent Company. The Complainant submits that she was told by the HR Manager that as the location of her work had changed to a new location the Respondent Company was not responsible for her employment on the Transfer of Undertaking. On 25th March 22019, the Complainant wrote to the Respondent Company’s Managing Director, informing him that she was taking the matter up with the WRC. On 28th June 2019, the Respondent Company’s HR Manager wrote to the Complainant with an offer of; a payment for outstanding work (€101.48 since received by the Complainant); an offer of a minimum of 10 hours work per week on a specified cleaning contract site; and without an admission of liability, a net payment of a €700.00 gratuity. The Complainant was not happy with the offer made and processed her complaint to the WRC. In direct evidence at the hearing the Complainant stated that she never said she could not work in the new premises, but she did have a problem buffing floors. She also stated that during the period she was on “standby2, she did other work for Company M. In conclusion, the Complainant is seeking: · Payment of wages · Payment of Holiday Pay carried forward · Payment for the time she spent on standby · Her Notice Payment · Travel expenses for the meeting with the Respondent Company’s representatives, printing and postage charges · Compensation.
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Summary of Respondent’s Case:
The Respondent submits that the Complainant was employed by Company M as a cleaning operative. Company M held a cleaning contract at Company A’s premises, in X street, at which the Complainant worked. Company A put a cleaning services contract out for tender for a new premise in C street. A Facilities Management company was awarded the contract for the new location in C street, with new required working hours, duties & staffing levels. This Facilities Management Company subsequently sub-contracted out their cleaning to the Respondent Company as they do not self-deliver cleaning services. The Respondent Company accepted the contract from the Facilities Management Company. The Contract was for three employees working 8.5 hours total, Monday to Friday. The Respondent submits that on 14th November 2018, they were contacted by a representative of Company M to advise that an employee from the premises on X Street (the original location of Company A’s offices) was eligible to transfer over to the contract in C Street. Company M only provided minimal information on this employee. This was less than 2.5 days before the commencement of the new contract in the new premises. The Respondent Company tried to contact Company M on Thursday 15th and Friday 16th November 2018, to voice their concerns. On the morning of Monday 19th November 2018, the Respondent Company contacted Company M and expressed their concerns regarding the eligibility of a TUPE in this instance. However, the Respondent Company expressed their concerns regarding the manner in which they felt the Complainant had been dealt with and requested a contact number for her so they could contact her. The Respondent Company’s Operations Manager then contacted the Complainant to arrange a meeting with her. The Operations Manager and the Complainant met in a coffee shop. The Complainant submits that at this meeting the Operations Manager advised the Complainant that she did not believe this was a valid TUPE situation and the Respondent Company were advising Company M of this however as the Operations Manager had previously worked with the Complainant in the past and knew she was highly recommended enquired of the Complainant if she would like to commence on the new site that evening. New location, new duties, new working hours, new team etc. The Complainant agreed to same and met the Operations Manager and her team on site that evening where induction/training and details of the new role were explained. Three days later the Complainant met the Operations Manager on site and told her that she was unable to carry out the daily duties required on the site (namely buffing floors) due to a pre-existing shoulder injury. The Operations Manager accepted that the Complainant could not carry out the role that had been previously agreed and confirmed to the Complainant that the facility did not have a role without buffing as a duty, which the Complainant understood. The Respondent submits that at this point the Operations Manager again advised the Complainant that it was the Respondent Company’s view that this had never been a TUPE situation and that they would again contact Company M and advise them of same as the Complainant had been a long standing employee of theirs and it was they who were responsible for providing her with work. Some communications took place between the Respondent Company and Company M in November. The Respondent Company made clear in correspondence to Company M, their view that this was not a TUPE situation. On 19th February 2019, the Respondent Company met with the Complainant and advised her that TUPE did not apply in this instance. The Complainant confirmed that she was still an employee of Company M and that she would talk directly to them about the situation. The Complainant also told the Respondent Company representatives that she had still not been paid for the hours she had worked at the new premises; it was agreed that this would be rectified. The Respondent Company representatives also advised the Complainant that if she ever required extra work or hours, they would be more than willing to accommodate her. A letter was subsequently received from the WRC. On 28th June 2019, the Respondent Company wrote to the Complainant on a Without Prejudice basis making an offer to resolve the matter. This offer was rejected by the Complainant. In conclusion, the Respondent Company is of the view that the original situation was never a valid TUPE and as such there is no employment relationship between the Complainant and the Respondent.
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Findings and Conclusions:
The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and statutory Instrument Number 131/2003 – European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003. The pertinent relevant sections in S.I. 131 are as follows: Regulation 3 “(1) These Regulations shall apply to any transfer of undertaking, business, or part of undertaking or business from one employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. (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 group of resources which has the objective of pursuing an economic activity whether or not that activity is for a profit or whether it is central or ancillary to another economic or administrative entity.”
(3) These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.” (Italics inserted)
“Regulation 4/
(1) 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.
(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed under in any collective agreement on the same terms applicable to the transferor that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”
Having considered the evidence adduced I find that the service involved was an “economic entity” and that a transfer took place on 19th November 2018, and that the Respondent was obliged to observe the Complainant’s existing terms and conditions of employment following the transfer. There are a number of reasons I find so: The customer was the same before and after the date Respondent took over the cleaning contract for Company X. Although the location of Company X changed the cleaning contract remained and was transferred to the Respondent Company. The economic entity remained the same post transfer and the work the Complainant carried out for Company A, was clearly similar and required post transfer. While employed by Company M on the Company A contract, 56% of the Complainant’s work was on the Company A site. Notably, the Complainant was asked to join the team in the new premises and in fact started working in the new premises under the auspices of the Respondent Company. However, the altered regime in the new location was not suitable for the Complainant for several reasons. When this became apparent the onus was on the Respondent Company to find suitable alternative work for the Complainant or make her redundant. They did neither and left the Complainant in no-man’s land. This limbo lasted until the meeting of 19th February 2019, when the Respondent Company made a settlement offer to the Complainant, which was rejected. Having decided that the Regulations did apply in this instance and having decided that the Respondent Company became responsible for the Complainant on 19th November 2018, I find the following in relation to the complaints laid out below.
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CA-00027845-002
Summary of Complainant’s Case:
The Complainant submitted that she did not receive notice, nor a payment in lieu of notice.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Complainant is due one weeks’ pay, €162.00, in lieu of notice.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded and the I order the Respondent to pay the Complainant €162.00 in lieu of her notice.
CA-00027845-004
Summary of Complainant’s Case:
The Complainant submitted that she was owed €291.60 in holiday pay which she never received.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Complainant is owed €291.60 holiday pay.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the Respondent to pay the complainant to pay the Complainant €291.60.
CA-00027845-011
Summary of Complainant’s Case:
The Complainant submits that she was never issued with written terms of employment.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Complainant was never issued with written terms of employment.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the Respondent to pay the Complainant €300 in compensation for this breach of the Act.
CA-00027845-012
Summary of Complainant’s Case:
The Complainant submits that she never received anything in writing from the Respondent regarding the changes that were made to her terms of employment.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Complainant was never notified of the changes taking place.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the Respondent to pay the Complainant €300 for the breach of the Act.
CA-00027845-014
Summary of Complainant’s Case:
The Complainant submitted that they had ben made redundant by the Respondent.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
The Complainant does have the required service to fall within the scope of the Act.
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.
The Complainant was not unfairly dismissed.
CA-00027845-015
Summary of Complainant’s Case:
The Complainant submits that she did not receive any redundancy payment
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Complainant does not have the requisite service to entitle her to a redundancy payment.
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I disallow the Complainant’s appeal.
CA-00027845-019
Summary of Complainant’s Case:
The Complainant submits that her new employer did not ensure that her terms and conditions transferred from her previous employer.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Respondent di not ensure that the Complainant’s terms and conditions transferred from her previous employer.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the Respondent to pay the Complainant compensation of €1,000.00.
CA-00027845-021
Summary of Complainant’s Case:
The Complainant submits that she was dismissed by her new employer on the grounds of the transfer of the business.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Complainant was dismissed by the Respondent on the grounds of the transfer of the business.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the Respondent to pay the Complainant compensation of €2,952.00.
CA-00027845-022
Summary of Complainant’s Case:
The Complainant submits that the new employer did not consult in relation to the transfer.
Summary of Respondent’s Case:
The Respondent does not accept that they ever had an employment relationship with the Complainant.
Findings and Conclusions:
I find the Respondent did not consult with her in relation to the transfer.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the Respondent to pay the Complainant compensation of €500.00
The following Complaints were withdrawn by the Complainant at the outset of the second hearing:
CA-00027845-001 |
CA-00027845-005 |
CA-00027845-006 |
CA-00027845-007 |
CA-00027845-008 |
CA-00027845-009 |
CA-00027845-010 |
CA-00027845-013 |
CA-00027845-016 |
CA-00027845-017 |
CA-00027845-018 |
CA-00027845-020 |
CA-00027845-023 |
Dated: 23.3.2020
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Transfer of Undertakings, |