TUD211

1.Appeal of an Adjudication Officer's Decision No(s)ADJ-00014776 CA-00018946-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003. A Labour Court hearing took place in a virtual setting on 23 February 2021. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Bidvest Noonan,( Ireland) Ltd., ‘the Respondent’ of an award made under Regulation 10 of the European Community’s Protection of Employees on Transfer of Undertakings Regulations 2003, (S.I. No. 131 of 2003), ‘the Regulations’, by an Adjudication Officer, ‘AO’, to Ms. Rabonsa, ‘the Complainant’.

The Complainant commenced employment with ISS Facilities Ltd. in December 2001. Under a transfer of undertakings, she became an employee of the Respondent in 2012.

It is contended by the Complainant that her pay with her previous employer was higher than the Employment Regulation Order, ‘ERO’, pay rates for the cleaning industry but that her pay was always increased in line with increases in these rates, prior to her transfer of employment. She claimed a contractual relativity that obliged her new employer, the Respondent, to increase her pay rates in line with increases to the ERO rates. The Respondent denies any contractual relativity and did not increase the Complainant’s rate of pay in line with increases awarded under the EROs for the industry in 2015 and 2016.

The Complainant lodged a claim under the Regulations with the Workplace Relations Commission on 4 May 2018 on the basis that the failure of her employer to increase her pay in line with increases in the EROs applicable to the contract cleaning industry amounted to a breach of the Regulations.

The AO found that her case was well founded and awarded compensation of €6500 to be paid to the Complainant by the Respondent.

This appeal is in addition to a case before the Court, involving the same parties, under the Payment of Wages Act 1991.

Deliberation.

The case before the Court under the Regulations is inseparable from the facts argued in the case considered by the Court under the Payment of Wages Act ,insofar as the Complainant argues an entitlement, by virtue of her contract, to have her pay increased in line with increases under the EROs for the relevant industry. It follows logically that if the Determination by the Court in the Payment of Wages case, on the same facts as the instant case, is that no such entitlement exists then there can be no basis for a claim under the Regulations.

The Court, having determined in the parallel case that the Complainant has failed to substantiate a claim that she has a contractual entitlement to have her pay increased in line with increases awarded under the EROs for the contract cleaning industry and, as there are no additional or different facts put forward in support of the instant case that differentiates it in terms of substance from the parallel case, is not in a position to uphold the claim under the Regulations.

Determination

The Decision of the Adjudication Officer is overturned.

	Signed on behalf of the Labour Court
	Tom Geraghty
DC	______________________
8 April 2021	Deputy Chairman