ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00022625

Parties:

	Complainant	Respondent
Anonymised Parties	An Insurance Advisor	An Insurance Advisory Company

Representatives

In person

No appearance

Complaint(s):

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-00029388-002	27/06/2019
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-00029388-004	27/06/2019
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-00029388-005	27/06/2019
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-00029388-007	27/06/2019
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-00029388-009	27/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00029592-001	27/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00031255-001	02/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00031255-002	02/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00031255-003	02/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00031255-004	02/10/2019
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-00031255-005	02/10/2019
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-00031255-007	02/10/2019
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-00031255-008	02/10/2019
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-00031255-010	02/10/2019
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-00031255-012	02/10/2019

Date of Adjudication Hearing: 26/02/2020

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or 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:

This inquiry involves a number of complaints made against the Respondent for breaches under the Transfer of Undertaking Regulations (TUPE); for failing to provide the Complainant with written terms and conditions of employment (T&C), for Redundancy (RED) and for constructively dismissing the Complainant (IR/UD)

The Respondent operated an insurance advisory business which changed its operating name over the course of the many years that the Complainant was employed there. The Complainant started work in April 1982 for the father of Respondent’s director. She worked in this position for 36 years, as an insurance advisor, before her position was terminated.

There is a related case taken against the transferee company recorded under the decision ADJ. 22626, which this decision/recommendation should be considered alongside.

This adjudication hearing into these complaints took place over two days. The first hearing was 23 September 2019 at which a complaint for T&C and five TUPE complaints (brought to the WRC on 27 June 2019) were presented. At the hearing, the director of the Respondent attended with his accountant and asked that the matters be adjourned, and that all correspondence be forwarded to an alternative address, as the Respondent in the related case of ADJ 22626 (involving complaints against the transferor company) was not on notice of all complaints. This application was permitted by this Adjudicator. The hearing was adjourned to 26 February 2020 and the correspondence in respect of the date for hearing was sent to the alternative address requested by the Respondent.

Following the first hearing on 2 October 2019, the Complainant instituted a number of fresh complaints against the Respondent, some of which were duplicate complaints to those already brought.

On the adjourned date, 26 February 2020 there was no appearance by or on behalf of the Respondent. All complaints (those dated 27.6.19 and the more recent complaints dated 2.10.19) were to be adjudicated upon. In light of the absence of the Respondent, the Adjudicator contacted the WRC and received confirmation that the Respondent had been put on notice of the hearing and that an adjournment application had not been received by the WRC. The Adjudicator then proceeded to hear the evidence of the Complainant, in relation to her complaints, in the absence of the Respondent.

Summary of Complainant’s Case:

The Complainant worked for the father of a director of the Respondent from April 1982 as an insurance policy advisor. He ran a reputable insurance advisory business in the North West of the country. Over the years the title and trading name of her employer changed a number of times, but the operation of the business and her employment remained the same. The Complainant’s job title was an insurance advisor. For thirty-six years the Complainant worked for this employer and until the last year of her employment (2018-19) she had been a loyal and happy employee. The last business name change occurred in 2009 however the Complainant contends that each change of name of her employer was a transfer of undertaking and her service was never broken.

In or around December 2018/January 2019 her employer changed its name again to that of the Respondent. After this name change, the business practices of the company also changed in that instead of remaining, as it had been, a tied agent for an insurance company, the Respondent became deregistered from the Central Bank and changed essentially from being an insurance advisory business (which was aligned to Central Bank regulation) to one that held itself out as being a registered insurance broker but was in reality a company which provided a service of internet searches to identify inexpensive insurance policies online, which were then passed to its customers.

The Complainant was uncomfortable with these changes and expressed this to her employer. She felt that the customers, many of whom she knew personally over many years, were being misled as to what service was being provided to them. The director of the Respondent disagreed with this.

These changes occurred in or around December 2018/January 2019 when the Complainant’s employment transferred from a transferor company (which is the named Respondent in a related case of ADJ. 22626) to the present Respondent.

Her complaint is that various breaches occurred under Regulation 10 of SI 131 of 2003 (namely that there was no information, consultation or notice of the proposed transfer of undertaking prior to it occurring. She also alleges that she was never provided with any written terms and conditions of employment. She alleges that she should have been paid a redundancy payment and that she was constructively dismissed (under the Industrial Relations legislation)

Essentially the Complainant, other than alleging specific breaches, contends that she was poorly treated by her employer, to whom she had been loyal to her whole working life. The manner in which she was treated at the end of her employment made her believe that the Respondent was attempting to force her out of her job while avoiding any liability under the Redundancy legislation. She left her employment on 26 July 2019 and instituted WRC proceedings (in respect of five TUPE complaints and one T&C complaint) on 27 June 2019.

On 2 October 2019, following the first adjudication hearing. the Complainant instituted nine additional complaints (CA-00031255-001 to CA-00031255-0012) some of which were duplicate complaints to those already brought. These complaints were T&C, Redundancy, TUPE complaints as well as an industrial relations act/unfair dismissal complaint.

The first tranche of complaints (brought on 27 June 2019) were brought prior to the termination of her employment and the second (including redundancy were brought 3 months after her dismissal.)

Specific Complaints

CA-00029388-002

The Complainant alleges that the Respondent failed to ensure that her terms and conditions of employment were transferred following the transfer of undertaking insofar as her job description and type of work changed.

CA-00029388-004

The Complainant alleges that her employee representation was not preserved by the transferee following the transfer of undertaking.

CA-00029388-005

CA-00029388-007

The Complainant alleges that the transferor company did not consult with her prior to the transfer of undertaking, in breach of regulation 8 of SI 131/2003, a breach for which the transferee is liable.

CA-00029388-009

The Complainant alleges that the transferor company did not advise her prior to the transfer of undertaking, in breach of regulation 8 of SI 131/2003, a breach for which the transferee is liable.

CA-00029592-001

The Complainant did not receive written terms and condition of employment from the Respondent

CA-00031255-001

The Complainant did not receive written terms and condition of employment from the Respondent [Duplicate of CA-00029592-001]

CA-00031255-002

The Complainant did not receive written terms and condition of changes to her employment from the Respondent

CA-00031255-003

Due to being asked to perform duties that appeared to the Complaint to be a misleading of its customers the Complainant was not happy in her job and felt inclined to leave. She raised her concerns with her boss who disagreed with her. However, the termination of her employment was not of her choosing. This unfair dismissal complaint is brought in the form of an Industrial Relations complaint.

CA-00031255-004

Towards the end of her employment in July 2019 the Complainant was working a three-day week and was discussing redundancy terms with the Respondent. In furtherance of these discussions she was asked to attend a morning meeting in Letterkenny, which was some distance from the office. Before driving to Letterkenny, she went to the office to collect paperwork but found that the locks on the door had been changed. The Complainant knew that the office was closed for a two-week summer break in August and a sign had been put up to that effect. However, she believed that it would open as the notice set out on 6th August. She had not been told that the office would be shut or that her job was terminated. At the meeting in Letterkenny the Complainant was told by the director of the Respondent that she would be paid €25,000.00 as a lump sum payment in respect of redundancy. Prior to 26 July 2019, she got no notice that the office would be closing, that her services were no longer required and nor was she offered an alternative position with the Respondent, which constituted a redundancy.

CA-00031255-005

CA-00031255-007

The Complainant alleges that her employee representation was not preserved following the transfer of undertaking. [Duplicate complaint to CA-00029388-004]

CA-00031255-008

CA-00031255-0010

The Complainant alleges that the transferee company did not consult with her prior to the transfer of undertaking, in breach of regulation 8 of SI 131/2003, a breach for which the transferor is liable. [Duplicate complaint to CA-00029388-007]

CA-00031255-0012

The Complainant alleges that the transferee company did not advise her prior to the transfer of undertaking, in breach of regulation 8 of SI 131/2003, a breach for which the transferor is liable. [Duplicate complaint to CA-00029388-009]

Summary of Respondent’s Case:

No appearance.

Findings and Conclusions:

The Respondent operated an insurance advisory business which changed its operating name over the course of the many (37) years that the Complainant was employed, the last occasion being in late 2018 or January 2019. The Complainant started working in 1982 for the father of Respondent’s director before his son took over the running of the business and it was to him that the Complainant reported. She worked without any break in service until her position was terminated in July 2019.

Having heard the uncontested evidence of the Complainant I made the following findings and conclusions in respect of the specific complaints listed as follows:

TUPE complaints:

CA-00029388-002

This TUPE complaint relies on the contention that the job that the Complainant was doing pre- transfer and post transfer was substantively different in that in the former she was required to provide insurance advice which was protected by Central Bank regulation and in the latter, which was akin to, as she put it “a ghost broker” she was required to try to retain customers (who had been acquired when they had been a tied agent or a sub-broker) but to retain them using insurance quotes which were garnered from simple internet searches. She contends that her terms and conditions include a condition that the type of work she was required to do (which was providing a reputable service) be kept at the level that it had been.

The issues are arising are as follows:

1. Did a TUPE occur in January 2019 or was it a business name change?

2. Were the changes to her work as a result of the transfer? Or as a result of the loss of contract with the tied agent which pre-dated the transfer?

3. Were the changes to her work and job description as a “personal advisor” as opposed to an “Insurance Advisor” a change to her terms and conditions of employment within the meaning of the TUPE regulations?

In relation to Q. 1 the Respondent changed its name and this occurred in either late 2018 or early 2019. This of itself doesn’t necessarily give rise to a transfer of undertaking if the employer does not change. However, the uncontested evidence of the Complainant is that the employer changed because one of the directors had died, therefore the composition of the new company was other than it had been. I am satisfied that a transfer of undertaking did occur when the new directorship composition changed. While the new name was registered in late 2018, the relevant date is when the undertaking or business (including the employment of employees) transferred. It is unclear of when this occurred or indeed if there was a specific date. I accept that the new name may have been registered in late 2018 but first notice that the Complainant received was when she was provided with a P.60 in January 2019 which identified her new employer as the Respondent. I am satisfied therefore that a transfer of undertaking did occur and that it occurred on a date unknown in late 2018 and January 2019.

In relation to Q. 2 as the Complainant’s evidence was that her new work practices were introduced in January 2019, I accept her evidence that the new practices were introduced as a result of the transfer. The fact that the transfer itself occurred in part due to a loss of the tied agent contract, is immaterial. The uncontested evidence was that the business started a new business model once the company changed (in part) its directorship make-up and acquired a new name. I am satisfied that the changes to the Complainant’s work, occurred from January 2019 onwards following the transfer of undertaking.

In relation to Q. 3 I am not satisfied that the changes to her work practices required by her new employer following the transfer constitute changes which constitute a breach under the TUPE regulations. The TUPE regulations are in place to protect terms and conditions of work (eg a reduction in pay, reduced hours of work, losing benefits etc.) as a result of a transfer. It is not to ensure that one’s job remains exactly as it was before. Had no transfer occurred and had the employer remained the same, it was within the Employer’s right to change its business model, including changing the nature of work done by employees, to suit its needs. Responsibilities attaching to a position may change due to a change in circumstances of the business and would be the case pre-transfer and post transfer. While terms and conditions (pay, hours of work, statutory rights etc.) cannot alter, this does not mean that job responsibilities may not. The responsibilities of a job do not become frozen because a transfer occurs.

If as is alleged in this case, an employee’s position becomes untenable because s/he is being asked to do something that they regard as wrong, then there are remedial options available to the employee, other than to pursue a complaint under TUPE. S/he could resign and pursue a constructive dismissal case or if illegality is at play, sh/e could report the breach to the authorities. To conclude, the right to do exactly the same job post-transfer (as opposed to the right to have the job itself, pay and other terms and conditions preserved) is not a protected right under the TUPE regulations.

Therefore, while I find that a transfer did take place in or around January 2019 the right to keep doing the job she was doing (as a tied agent when the business was no longer operating as a tied-agent or a sub broker, governed by the Central Bank) is not one which is protected, at least not by the TUPE regulations.

For this reason, this complaint is not well founded

CA-00029388-004

The Complainant alleges that her employee representation was not preserved by the transferee following the transfer of undertaking. As the Complainant has not provided any evidence in relation to her employee representation, I find that this complaint is not well founded.

CA-00029388-005

The Complainant alleges that the transferor company did not inform her employee representative of the details of the transfer, in breach of regulation 8 of SI 131/2003, a breach for which the transferee is liable however no evidence has been provided that there was a failure to inform the Complainant’s employee representative of the details of the transfer prior to it occurring and therefore I find that this complaint is not well founded.

CA-00029388-007

I accept the uncontested evidence of the Complainant that she was not consulted prior to the transfer of undertaking and I am satisfied that this complaint is well founded.

Award: €800

CA-00029388-009

The Complainant alleges that the transferor company did not advise her prior to the transfer of undertaking, in breach of regulation 8 of SI 131/2003, a breach for which the transferee is liable.

I accept the uncontested evidence of the Complainant that she was not advised prior to the transfer of undertaking and I am satisfied that this complaint is well founded.

Award: €800

T&C complaints

CA-00029592-001

I accept the uncontested evidence of the Complainant that she did not receive any written terms and condition of employment from the Respondent and I am satisfied that this complaint is well founded.

Award: €1500

CA-00031255-001

The Complainant did not receive written terms and condition of employment from the Respondent [Duplicate of CA-00029592-001]

As this is a duplicate claim, I find this complaint to be not well founded

CA-00031255-002

The Complainant did not receive written terms and condition of changes to her employment from the Respondent.

I accept the uncontested evidence of the Complainant that she did not receive written changes to her terms and condition of employment however as this could only have occurred after the transfer and as provision has already been made that no contract was given to the Complainant by the Respondent I find the complaint to be well founded but I do not make any award in respect of this finding.

Award: nil

Unfair Dismissal under IR Acts

CA-00031255-003

As I find that a transfer of undertaking occurred in or around late 2019, it follows that there was no break in the Complainant’s employment from 1982-2019. For this reason, it would have been open for the Complainant to bring an Unfair Dismissal complaint under the Unfair Dismissals Acts 1977, as amended. However, the present complaint was brought under the Industrial Relations Act 1969, as amended, and will be confined to a recommendation, pursuant to that Act.

As the complaint in respect of redundancy, which precludes a finding of unfair dismissal, has been upheld in the body of this decision the remedy for dismissal will be dealt with under that complaint and for that reason I find this complaint to be not well founded.

Recommendation: none

Redundancy

CA-00031255-004

When the Complainant informed the Respondent in January/February 2019 that she was not happy doing the new work she asked about being paid redundancy if she left. She continued working pending any decision by management. The Complainant and the director discussed the matter a number of times and in June, while still working, she was told by the director to consider what she wanted to do while he went to the US for two weeks. On his return the Complainant said that she would leave if she received an agreed lump sum in respect of a redundancy payment. What followed was a series of meetings to agree a redundancy package, but which never was agreed, and the Complainant continued to work. The director placed the Complainant on short-time from 8 July 2019. On 25th July he asked the Complainant to attend a meeting him in Letterkenny which was some distance from her home to discuss the matter of redundancy. Before she drove there, she drove the office to pick up some papers work and found that the locks had been changed. The Complainant went to the meeting and was upset with her boss that she hadn’t been told that the office had shut. She expressed her upset at this to the director at the meeting. At the meeting the director told her that she would be paid €25,000.00 as a lump sum payment in respect of redundancy.

At the Adjudication hearing, the Complainant contended that she was made redundant and sought payment of the agreed redundancy figure of €25,000. However, this was a private agreement that was reached between the parties and the jurisdiction of an Adjudicator is for statutory redundancy.

I am satisfied that the Complainant was unhappy in her position and that she wanted to leave. However, she continued to work for the Respondent until Friday 26th July when the office was closed, and the locks were changed. She had no notice that this would occur and expressed her upset at this to the director at the meeting later that morning. The Complainant had believed that she would return to work after the summer break. The public notice posted on the office door by the Respondent stated that the office would remain closed until 6 August 2019. The Complainant believed that until a termination of her employment occurred, that she was still an employee of the Respondent. When given short time hours from the start of July, she was still employed. It was not until the locks on the office were changed and that she attended the meeting in Letterkenny that she learned that her position was terminated.

As her position was no longer available, I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement: April 1982

Date of Termination: 26 July 2019

Gross Weekly Pay: €424.49

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00031255-005

As this is a duplicate, I find this complaint to be not well founded

CA-00031255-007

The Complainant alleges that her employee representation was not preserved following the transfer of undertaking. [Duplicate complaint to CA-00029388-004]

As this is a duplicate, I find this complaint to be not well founded

CA-00031255-008

As this is a duplicate, I find this complaint to be not well founded

CA-00031255-0010

As this is a duplicate, I find this complaint to be not well founded

CA-00031255-0012

As this is a duplicate, I find this complaint to be not well founded

Decisions:

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.

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.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

TUPE complaints:

CA-00029388-002

I find that his complaint is not well founded

CA-00029388-004

I find that this complaint is not well founded.

CA-00029388-005

I find that this complaint is not well founded.

CA-00029388-007

I find that this complaint is well founded.

Award: €800

CA-00029388-009

I find that this complaint is well founded.

Award: €800

T&C complaints

CA-00029592-001

I find this complaint is well founded.

Award: €1500

CA-00031255-001

I find this complaint is not well founded

CA-00031255-002

I find the complaint to be well founded

Award: nil

Unfair Dismissal under IR Acts [Recommendation]

CA-00031255-003

I find this complaint is not well founded.

Recommendation: none

Redundancy

CA-00031255-004

I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement: April 1982

Date of Termination: 26 July 2019

Gross Weekly Pay: €424.49

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00031255-005