ADJ-00022439

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00022439

Parties:

	Complainant	Respondent
Anonymised Parties	A Security Guard	A Company

Representatives

Dave Curran SIPTU

Internal Management

Complaint:

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-00029061-001	14/06/2019

Date of Adjudication Hearing: 22/01/2020

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Despite the complainant’s employment transferring to the respondent on 3rd January 2019, it was alleged that his previous terms and conditions were not maintained.

Summary of Complainant’s Case:

The complainant’s representative claimed that his contract of employment states that he was employed for 39 hours per week and alleged that he was always paid for this number of hours by his previous employers in circumstances where fewer hours were available. It was also claimed that SIPTU contacted the respondent prior to the transfer of his employment and informed them of the agreement in relation to payment of the contracted hours. Notwithstanding this and following the transfer on 3rd January 2019, he was only paid for 32 hours per week however and therefore had his pay reduced by 7 hours per week.

Summary of Respondent’s Case:

The respondent’s representative stated that he only had 32 hours of work available per week for the complainant. While he was not aware of the complainant’s contracted hours, he did not dispute that SIPTU had contacted him prior to the transfer of the complainant’s employment and informed him of the agreement in relation to payment of the contracted hours.

Findings and Conclusions:

It was not disputed in this case that, prior to his employment transferring to the respondent on 3rd January 2019, the complainant was always paid for 39 hours per week in circumstances where fewer hours were available. It was also agreed that, notwithstanding the pre-transfer arrangements, the complainant was only paid for 32 hours per week transfer post transfer.

I note that Section 4 (1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 states that : “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.” Given there was no dispute that surrounding the specifics of the complaint, I note that as a result of only being paid for 32 hours per week as opposed to his entitlement of 39 hours per week, the complainant had a shortfall of € 1,668.45 for the 21 week period from 3rd January to 31st May 2019 and a further €2,691.15 from June 1st , when he received a pay increase, to the date of the hearing.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having decided that the complaint is well founded, Section 10 (5) of the Regulations states that I must:

		(b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or
		(c) require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -
		(i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,
		(ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration, Accordingly, I require that the respondent pay the complainant an amount of €4,359.60 in respect of the shortfall in pay from the date of transfer to the date of the hearing. In addition, I require that the complainant is paid an additional sum of compensation in the amount of €250 in respect of breaches of the Regulations. Finally, I require that the employer pays the complainant for 39 hours per week from the date of the hearing going forward, in circumstances where fewer hours are available.

ADJ-00022439

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00022439

Parties:

Complaint:

Dated: March 18th 2020

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Key Words: