Complainant

Respondent

Anonymised Parties

Contract Cleaning Operative

Contract Cleaning Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00031020-001

20/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031020-003

20/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031020-004

20/09/2019

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-00031021-005

20/09/2019

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-00031021-007

20/09/2019

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

CA-00031236-001

20/09/2019

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

CA-00031236-002

20/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031236-003

20/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00031236-004

20/09/2019

The issues to be decided stem from a claim that there was no transfer of undertakings between the Respondent and a named other cleaning company. The Complainant was employed by the Respondent as a cleaner in the same location for a number of years. Once the question of whether a transfer of undertakings occurred is addressed then Decisions can be taken in relation to complaints/appeals under the Redundancy Payments Act, Unfair Dismissals and the Minimum Notice and Terms of Employment Act which were submitted by the Complainant against this Respondent. The Decisions in this case can be read in conjunction with ADJ-00024521.

The Complainant was employed by the Respondent from 1st July 2002 until her last day of work on 7th December 2018 after which she was on a period of prearranged leave. On 9th November 2018 she received notice from the Respondent informing her that her employment would transfer to an incoming named contractor. It is her contention that she did not receive any further information and no formal written communication but was informed to report to work as normal in January. In January 2019 following the completion of her leave she turned up at the place where she had been employed by the Respondent and was told by the new contractor that there was no work for her. The new contractor stated that they had no contact from the Respondent in this case and she found herself between two stools. She understood from the new contractor that he may have work for her at a future time and in July 2019 she received a text from the new contractor offering her different terms and conditions with reduced hours and a reduced rate of pay. It was after that she sought advice in relation to the matter and her claims were lodged to the WRC. The delay in submitting complaints was due to the fact that she did not know what was happening and she had some understanding that the incoming contractor might take her into employment. She had contacted the Respondent during this six-month period but from June or July 2019 contact ceased from the Respondent. At all stages she understood from the Respondent that she was transferred to the incoming contractor but there was an uncertainty about her situation until she was offered reduced hours and a reduced rate of pay. Her rate of pay with the Respondent was €81.00 per week for 7.5 hours. Against this the Respondent under ADJ 24521 had offered less hours on a lower rate of pay.

Regarding the complaint under the Redundancy Payments Act is that if it is deemed that there was no transfer of undertakings from this Respondent, the Complainant was either dismissed or was made redundant hence the complaints under the Unfair Dismissals Act 1977 and under section 39 of the Redundancy Payments Act 1967. Under the Minimum Notice and Terms of Employment Act, the Complainant is seeking payment of her entitlement to notice in the event that it is decided that her employment did not transfer under TUPE to the incoming contractor.

At the hearing the solicitor for the Complainant presented a decision of the EAT, UD461/97, in which the Respondent, who was a party to that Decision, had agreed that they were liable for redundancy when there was a change of a cleaning contract provider from them to another named contractor.  

The Respondent presented a preliminary issue that the complaints which were lodged with the WRC on 20th September 2019 were outside of the six months limit from the date of alleged contravention. This is on the basis that the employment of the Complainant ended on 7th December 2018. The Respondent rejected the reasons set out for a claimed extension of the time limit in a letter dated 3rd December 2019:  

“The Complainant has been in contact with X of the Respondent up until June/July 2019 seeking clarity in relation to her position vis-à-vis the Respondent and/or the new entity to which she was being transferred under TUPE Regulations. In around June/July 2019, all contact ceased and she was then contacted by the new contractor, X trading as Y that the terms and conditions would be changing and sought her agreement to this. It was only at this point that our client became aware of the misrepresentation and deception of her former employer, XX, in relation to the transfer of her employment”.

The Respondent rejected the reasons put forward for the delay saying that the Complainant had experienced issues with the transferee in January 2019. There were telephone conversations between the Complainant and the Respondent in this case in January 2019 during which the Complainant was advised to seek professional advice in respect of her entitlements and had in fact advised the Complainant to join a union. The Respondent submits that in January 2019 the Complainant informed the Respondent that she had sought legal advice. The named person acting on behalf of the Respondent confirmed that as far as the Respondent is concerned the TUPE Regulations applied and the Complainant was entitled for her job to transfer to Y. The Complainant was advised to contact a more senior manager with the Respondent if she needed any further clarification on the transfer and that the Complainant failed to do so and there was no further contact between the Respondent and the Complainant until 18th June 2019. Furthermore, it was submitted that the complaint was not lodged until 20th September 2019 which was some time after the last contact with the Respondent in June 2019.

Regarding the substance of the case the position of the Respondent is that there was a transfer of undertakings from the Respondent in this case to a transferee and named company who took on the cleaning services contract effective from 10th December 2018. The Respondent had contacted the incoming contractor, described as the transferee, on 9th November 2018 to confirm that the incoming contractor would be required to accept the Complainant who was the only cleaner servicing the location. Also on 9th November, the Respondent wrote to the Complainant advising her of the upcoming transfer and explaining her rights under TUPE. On 12th November 2018 the incoming contractor informed the Respondent in writing that they would not be “acquiring or accepting any additional employees”. On 13th November 2018 the Respondent emailed the incoming contractor urging them to accept the Complainant’s employment in line with S.I. 131/2003. The Respondent outlined the relevant case law to the incoming contractor citing ECJ decisions in that regard.

On 14th November 2018 the Respondent received an email from the incoming contractor saying that the Transfer of Undertakings Regulations did not apply in this case and he requested that the keys of the premises were transferred to his possession.

On 20th November 2018 the Complainant indicated in writing that she wished for her employment to be transferred to the incoming contractor under the relevant legislation.

On 26th November 2018 the Respondent sent the employees details to the incoming contractor and informing them that with effect from 10th December 2018 the employment of the Complainant would become the responsibility of the incoming contractor. On 26th November 2018 the Respondent received an email from the incoming contractor stating that he had no obligations in relation to the Complainant. A named manager acting on behalf of the Respondent informed the Complainant that she was to present herself to work on the day the transfer was to occur, i.e. 10th December 2018. On 10th January 2019 the annual leave balance was paid to the Complainant.

In January 2019 there were telephone conversations between the Complainant and the named manager where the manager gave advice to the Complainant. It is the position of the Respondent that there was no contact between the Respondent and the Complainant thereafter until 18th June 2019.

Legal Precedents.

In their submission the Respondent submitted cited aspects of the following ECJ decisions: Schmidt v Spar-und Leihkasse Der Früheren Ämter Bordesholm Kiel Und Cronshagen, Botzen and Others v Rotterdamsche Droogdok Maatshappij, Ayse Süzen, and Carlito Abler and Others v Sodexho MM Catering Gesellschaft mbH. Irish precedents cited were Momentum Support Services (Ireland) Ltd t/a Momentum v Annie Thomas, EAT decision, and ECM v Cox [1998] I.R. 416, and Euro Car Parks Ireland Ltd v Dermot Kelly (TUD1810).

In summary, the Respondent submits that the Complainant’s employment transferred to the incoming contractor; that they discharged their obligations to the employee under the Transfer of Undertakings Regulations; the Complainant received formal notification of the transfer and responded to same confirming that she consented to the transfer; on 10th December 2018 the employment of the Complainant became a matter for the incoming contractor. In respect of the complaints under the Minimum Notice and Terms of Employment Act of 1973 and the Redundancy Payments Act of 1969 the Respondent submitted that the employment of the Complainant transferred to the Respondent incoming contractor and was not terminated by the Respondent in this case. Consequently, a redundancy scenario and a requirement to pay statutory minimum notice do not arise. The Complainant had received her employment details in writing for the purposes of compliance with the Terms of Information Act,1994.

In reference to UD461/97, it was clear at the hearing that those present had no knowledge of that previous EAT decision or why the Respondent in this case had agreed on that occasion that they were liable for redundancy. The Respondent was therefore given the opportunity to consider and consult within the employment further regarding this matter. On 9th March 2020 a response was received as follows:

“The Respondent wishes to note that the decision relied on is dated 1997 and notes that the Labour Court would have issued more recent decisions in cases with similar circumstances. The Respondent referred to the Euro Car Parks Ireland Ltd v Dermot Kelly during the hearing and wishes to rely to this decision again. The Respondent relies on the Labour Court findings where, the Labour Court having satisfied itself that the operation of the business [car park] as characterised as a stable economic entity, focused on the continuation in the use of the core assets of the business post-transfer as opposed to the change in ownership of those assets, and accordingly, held that the Transfer Regulations applied.”

The question was put to the Respondent by the AO at the hearing as to whether they could provide any precedent in the interpretation of the Statutory Instrument of 2003 where it was found by a third party in this jurisdiction that the transfer of essentially a contract for cleaning from one service provider to another constituted a transfer of undertakings as defined. The Respondent was unable to do so and instead repeated as they did in the response to the role of the Respondent in the matter before the EAT in 1997 that the more recent decision of Drury v Euro Car Parks Ireland Limited should be applied. Having reviewed that Determination by the Labour Court in its entirety, it is difficult to see how any conclusion could be arrived at which would apply the Determination in Euro Car Parks to the transfer of a cleaning service contract and certainly as in this case where there is no transfer of assets of any kind as between the outgoing and incoming contractors. In their Determination in TUD1810, the Labour Court placed considerable reliance on the decision of the Court of Justice in Case 340/01 Abler and Others which was concerned with a transfer between two providers of catering services. Critical to that decision by the ECJ and the judgment of the Labour Court in Euro Car Parks is self-evidently the transfer of assets by way of kitchens, food storage and food preparation facilities in the Abler case and the nature of the service in Euro Car Parks where they were providing a service to a paying public “utilising that same substantial and fixed essential asset (i.e. the car park building, ticket payment machines, barriers etc.).” There is nothing by way of similarity as between the circumstances in the Euro Car Parks case and those in the current case.

The reality under Irish law under the Irish Regulations and interpretation of those Regulations in the context of ECJ decisions is that there is no body of opinion supporting the case put forward by the Respondent in this decision to the effect that the transfer of a contract cleaning service pure and simple between two contractors represents a transfer of undertakings. Given the experience of this particular Respondent in the contract cleaning industry it is difficult to understand how they would maintain a position regarding a transfer of undertakings in these circumstances in the light of case law and the reality of case law over many years both before and after the Regulations of 2003. It may be the case that the current Respondent, whether independently or by agreement with the client, retains many people on taking over a contract transferred from another contractor but that has no bearing when it comes to interpreting the Regulations.

The Regulations in the United Kingdom at section 3(1) specifically provide for the type of scenario that is presented in this case where it provides at section (b) when defining the application of the Regulations: “a service provision change, that is a situation in which - (i) activity ceased to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”), (ii) activity ceased to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client’s behalf, or (iii) activity ceased to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf, and in which the conditions set out in paragraph (3) are satisfied.

The conditions at paragraph (3) are : (a) immediately before the service provision change - (i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client, (ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use.”

Without delving into how the Regulations developed within the UK, there is a clear and absolute difference between the 2003 Regulations in Ireland and those which have applied in the UK since 2006. Recognising that the 2003 Regulations have implications for the contractors as well as the employees given that a contractor may have to allow for redundancy payments where any contract were to exceed a two-year period. And the corresponding implication is that those employed under contract cleaning contracts have no protection under the Regulations unless there are specific circumstances in a given situation which differ from the precedents followed in this and other cases which allow the 2003 Regulations come into play. Nonetheless, to be frank, it is difficult to imagine any circumstances in which there is a value in a cleaning contractor in the exactly same situation as the Respondent in this case and others, continuing to maintain to employees that they have no liability for redundancy or for other liabilities to their employees on a particular contract and that all such liabilities transfer to the incoming contractor. Although expressed in a different way in several adjudication decisions issued by the Workplace Relations Commission in December 2019(which were ironically concerned in part with the Respondent in the related case ADJ-24521) the position of the WRC and other Bodies where the facts are the same, i.e. a simple transfer of a cleaning contract as between one contractor and another must be regarded as settled, if there was any real doubt about the matter since Cannon v Noonan Cleaning Ltd and CPS Cleaning Services Ltd and also Suzen. In summary, the position put forward by the Respondent in this case is not well founded based on the Regulations of 2003 and the decisions of appropriate authorities in interpreting the EU and/or national Irish legislation.

The Complainant was made redundant by virtue of the fact that she was offered no alternative employment by the contractor and the work for which she had been engaged for sixteen years ceased. Furthermore, she was misled by the Respondent as to her rights under the Transfer of Undertakings Regulations. In this regard account is taken of the fact that this is nationally a large and well experienced contract cleaning provider who frankly should have known better than to lead the Complainant in the direction which they chose to follow. Their advice to her was at best misplaced. The incoming contractor had made his position known, yet the Respondent in this case effectively left the Complainant to her own devices. The Statutory Instrument and Regulations are in place in Ireland for many years and to attempt to reinvent their interpretation in this case based on an entirely unrelated case was ill conceived.

Regarding the dispute about time limits, Section 24(1) of the Redundancy Payments Act 1967-2019 provides:

Notwithstanding any other provisions of this Act, an employee shall not be entitled to a lump sum unless before the end of a period of 52 weeks beginning on the date of dismissal or the termination of employment.

Subsection (c) states:

A question as the right of the employee to payment, or as to the amount of the payment, has been referred to the Director General under Section 39.’

As the date of termination of the Complainants employment with the Respondent occurred on December 7th, 2018 and she referred the question of a redundancy payment to the Director General on 23/09/2019,the question of an extended time limit for consideration of the complaint under the Redundancy Payments Act does not arise.

The question of extending the normal time limit beyond six months does arise under the Minimum Notice and Terms of Employment Act 1973, as amended. As the complaint of non-payment of minimum notice is directly related to the finding that the complainant was made redundant, it seems reasonable to extend the initial six-month period to allow for the complaint to be considered on its merits. Ignorance of time limits regarding the making of claims can be accepted as grounds for not extending the initial time limit in cases where employment rights are at issue. However, in this case the ignorance was more fundamental-whatever else she knew or should have known prior to the expiry of the initial six-month period, she was not notified of her redundancy or entitlement to statutory redundancy by the respondent at any stage prior to the expiry of the initial six-month period for bringing a complaint.

The claim is allowed under the extended time period as provided for in Section 41(6) of the Workplace Relations Act 2015.

Having found that the Complainant was made redundant consideration of a separate complaint under the Unfair Dismissals Act does not arise. That the primary focus in this case was the claim for redundancy in the event it was found there was no transfer of the undertaking, was acknowledged on behalf of the Complainant at the Hearing.

In respect of the Terms of Employment (Information) Act, this complaint was not justified by the complaint presented at the hearing and the Respondent satisfied the hearing that they had provided the Complainant with her terms and conditions of employment as required under the legislation.

Regarding the Transfer of Undertakings Regulations, no case was made out for a breach of those Regulations and it was accepted that the real issue was the question of the status of the employment with the Respondent as to whether or not there was a transfer of undertakings or in the alternative a liability for redundancy and therefore no award is made under the Transfer of Undertakings Regulations. Given that the claim that there was a transfer of undertakings is not well founded, the question of a breach of those Regulations is found to be moot. 

Redundancy Payments Act-Section 39

The appeal by the complainant against the decision of the employer not to pay her statutory redundancy is allowed. The Respondent is to pay the complainant statutory redundancy based on service from 1 July 220 until 7 December 2018 and a weekly wage of €81, subject to the complainant being in insurable employment for the period.

Minimum Notice Act 1973.

The complaint that the complainant was entitled to receive eight weeks gross pay in lieu of notice on termination of her employment on December 7th, 2018, is well founded. The Respondent is to pay the Complainant eight weeks gross pay in lieu of notice.

Unfair Dismissals Act

The complainant was made redundant and is to receive statutory redundancy pay. Any further complaint under the Unfair Dismissals Act is not well founded.

Terms of Employment Act 1994.

The complaint under Section 10 of the Terms of Employment Act 1994 is not well founded.

Transfer of Undertakings Regulations 2003

The complaint under the Transfer of Undertakings Regulations is not well founded.

Transfer of Undertakings Contract Cleaning/Redundancy and Notice Claims