Complainant

Respondent

Parties

Sadie  Egan

Horan Eco Services Limited

Representatives

 Gilvarry & Associates Solicitors

Mr Bart O’Donnell B.L. instructed by O’Shea Legal, Solicitors

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-00026680-001

28/02/2019

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-00026680-003

28/02/2019

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-00026680-004

28/02/2019

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-00026680-006

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026680-008

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00026680-009

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026680-010

28/02/2019

The complainant, Mrs Sadie Egan, has been employed at Ballyhaunis Community School since 1st September 2003 as a Cleaner. The complainant has raised 11 complaints in total in relation to her employment. The complaints were submitted to the Workplace Relations Commission on 27th February 2019. Seven of the complaints are addressed under the within Adjudication Reference No; Adj 000-20782. The remaining four complaints are addressed in Adjudication Reference No; Adj 000-20783.

The complaints arise as a result of a transfer of the cleaning function at Ballyhaunis Community School to Horan Eco Services Limited. The cleaning function transferred to the respondent on 1st October 2018.

The resumed hearing of the within complaints has incurred a number of delays since the matter was first heard in July 2019. On the day of the initial hearing certain issues raised by the complainant such as payment frequency and employment status were conceded by the respondent. It was subsequently agreed to adjourn the adjudication hearing for local level discussions between the parties and a reconvened adjudication hearing could address unresolved issues at a later date.

In the months that followed numerous updates were sought in relation to discussions that were taking place, prior to the adjudication hearing being reconvened. The complainant’s Solicitor, Mr Gary Mulchrone of Gilvarry and Associates Solicitors subsequently sought a reconvened face to face adjudication hearing by letter dated 29th June 2020 on the basis that no meaningful discussions had taken place between the parties.

Despite adjudication hearings taking place remotely at this time due to the Covid restrictions in place, it was accepted by the WRC that this matter be reconvened as a face-to-face hearing once the additional information had been received from the complainant’s Solicitor and in line with Public Health guidelines and Government Policy pertaining to the ongoing pandemic. These issues were conveyed to the parties by email dated 17th July 2020 and in further correspondence in January, April and May 2021.

Further correspondence was received from the complainant (and her two work colleagues who also have identical complaints in respect of their employment) to say that they were no longer being represented by their previous Solicitor and that they would represent themselves at any future hearing of the complaints.

The hearing was reconvened to take place on 12th October 2021 in the WRC offices, Sligo. In advance of the hearing, Mr Myles Gilvarry of Gilvarry and Associates Solicitors confirmed in correspondence to the WRC that he had been instructed to represent the complainant and her colleagues at the reconvened hearing.

The adjudication hearing took place as arranged on 12th October 2021.

CA-00026680-001, CA-00026680-003, CA-00026680-004 and CA-00026680-006 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

These complaints concern assertions by the complainant that the new employer (Transferee) did not ensure that the complainants’ terms and conditions transferred to its employment, did not observe the complainants’ previous terms and conditions of employment and did not consult with or advise her on the transfer.

CA-0002680-008 – Payment of Wages Act, 1991

The complainant states that she is incurring an ongoing loss of €26.30 per week in circumstances where she was previously paid €411.05 per week gross and is now paid €769.50 gross per fortnight. The complainant contends that she has not agreed to this change in pay amounts and frequency and that the respondent has breached the legislation as a result. The complainant also asserts that she was not paid for 34 hours work and was left short a weeks wages at Christmas 2018 but did not provide any further details in relation to this.

CA-00026680-009 – Protection of Employees (Fixed-Term Work) Act, 2003.

The complainant contends that in September 2018, the respondent requested that she sign a 12-month contract which the complaint says was the previous practice when she was employed directly by the school. The complainant contends that the respondent has breached the legislation as a result.

CA-00026680-010 – Employment Equality Act, 1998 Discrimination (Gender)

The complainant asserts that she has been discriminated against on the gender ground and in her conditions of her employment. The basis of the complaint is that the cleaning function, which is staffed entirely by women, transferred to the respondent whereas the caretaking function, which is staffed entirely by men was retained in the direct employment of the school. The complainant contends that she was treated less favourably than her male comparators.

CA-00026680-001, CA-00026680-003, CA-00026680-004 and CA-00026680-006 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

The respondent to the within complaints is Horan Eco Services Limited. The respondent submitted that the complainants come within the scope of the Directive and that the TUPE regulations would have applied to the complainants. However, the respondent contends that a transfer has not taken place, as a matter of law, as the complainants who comprise the undertaking have elected not to transfer. The respondent further contends that in those circumstances it is a matter for the transferor and the complainants to establish whether the complainants are considered to have resigned or whether redundancy is applicable in the particular circumstances of the employment.

Notwithstanding its legal submissions the respondent outlined that the cleaning function was to be transferred in September 2018 and the complainants were to transfer to its employment at that time. The respondent confirmed that ultimately the transfer of the cleaning function did not take place until 1 October 2018 and although the economic entity (the cleaners) has not transferred, this is the date when the complainant began to receive her salary payments from the respondent. The respondent outlined that its function in relation to the complainant since October 2018 is that of payroll administration only.

In relation to its attempts to resolve the issues raised by the complainant, the respondent highlighted a number of attempts that were made to meet with the complainant and to establish the applicable terms and conditions of employment both prior to and after 1st October 2018. The respondent stated that it was confirmed to the complainant that the consultation period would remain open until after 1st November 2018 or for as long as was necessary to reach agreement on the issues that were outstanding.

The respondent further outlined that between October 2018 and December 2018, there were at least seven visits to the school from the both the former Business Development Manager and other members of management in an attempt to engage with the complainant. There were also significant levels of correspondence sent to the complainant throughout this time in relation to outstanding issues and the preference of the respondent to engage with the complainant until all matters were resolved.

In its post hearing correspondence dated 14th December 2021, the respondent outlined that by virtue of the TUPE regulations and the provisions of the Safety Health and Welfare at Work Act, 2005, it was legally obliged to inform the complainant and their representatives of the legal implications of the transfer as it would apply to them.

CA-00026680-008 – Payment of Wages Act, 1991

The respondent stated that it has made every effort to meet with the complainant on numerous occasions to clarify the basis of her complaint and to rectify any unpaid/ incorrect payments that may have occurred since October 2018.

In post hearing correspondence received on 14th December 2021, the respondent stated that it remains its position that the complainant has been paid all monies owed to her and that there have been no unlawful deductions applied to the complainant’s earnings.

CA-00026680-009 - Protection of Employees (Fixed Term Work) Act, 2003                                                                                                                                  

At the initial hearing of this complaint, the respondent accepted that the complainant was a permanent part time employee and was of the view that this matter could have been resolved if the complainant had discussed her issues at the time. The respondent contends that the request to sign the 12-month contract was as a result of the previous practice while the complainant was employed by the school.

In post hearing correspondence received on 14th December 2021, the respondent outlined its position that by virtue of Section 9(4) of the Protection of Employees (Fixed-Term Work) Act, 2003, successive fixed term contracts may be permitted if they are objectively justified. The respondent stated that this was an issue for the respondent to discuss with the complainant at the time of the transfer. However, no discussion took place as the complainant did not engage with the respondent. The respondent reiterated its position that it is open to comply with the wishes of the complainant in relation to her contract status within the organisation. 

CA-00026680-010 - Employment Equality Complaint Discrimination

The respondent refutes the complaints.

CA-00026680-001, CA-00026680-003, CA-00026680-004 and CA-00026680-006- European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

The respondent and its legal representative attended the adjudication hearing as did representatives of the Board of Management of the School and its legal representatives. Both groups claimed that they were not the employer of the complainant.

Legal Submissions

I have considered the legal submissions of the respondent and the case law which was cited in relation to the respondent’s position. It is not disputed that the regulations would have applied to the complainant’s employment on transfer to the respondent. The issue in this case as contended by the respondent is that no transfer occurred, as a matter of law, as the complainant chose not to transfer. In those circumstances the respondent contends that the issue of redundancy or resignation are matters to be discussed with the transferor as the employer.

On this point I note the decision of the High Court in Symantec Ltd v Leddy [2009] ELR 171 which at paragraph 23 and 24 states as follows:

[23] With great respect to the arguments advanced on behalf of the respondents the court disagrees profoundly with their view of the implications for Irish labour law of the European Court of Justice’s judgements in Katsikas v Konstantinidis (Joined cases C-132, 138 &139/91 [1992] E.C.R. 1-6577 and Merckx v Ford Motors Company Belgium SA (Joined cases C-171 &172/94 [1996] E.C.R. 1-1253 respectively. The Court has no doubt but that the correct view of the matter is that which has been articulated on behalf of the appellant. As the respondents have rightly pointed out, Irish implementing legislation does not make any particular provision as to what will occur if employees decide not to transfer. However, contrary to their belief, that fact operates against them. It does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-à-vis the transferor. It cannot do so because the fact that an employee objects to a transfer does not of itself have the effect of negativing the transfer. It is just that an employee is not obliged to continue his employment relationship with the transferee. However, the transfer still goes ahead unless a member state expressly provides for the contrary in its implementing legislation. That this is so is clear from the judgement of the European Court of Justice in Katsikas v Konstantinidis. That Court explained that the purpose of Council Directive 77/187/EEC is to allow the employee to remain in the employ of his employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the court said at para 33 “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking’s employees do not wish to remain in the transferee’s employ.”

[24] In my view nothing could be clearer. If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy, it could have enacted legislation to that effect. It has not done so. This court is completely satisfied that by virtue of reg.4(1) it is not possible for the respondents in this case to make a redundancy claim against the appellant. In all the circumstances the court is satisfied to allow the appeals in both cases.

As confirmed by all parties, the transfer of the cleaning function took place on 1st October 2018. On that date, by operation of law, the cleaning function became the responsibility of the respondent and also on that date, the complainant commenced being paid by the respondent. Having considered the matter I find that the complainant became an employee of the respondent (Transferee) on 1st October 2018 and although she has not taken instruction from the respondent since that time, she remains employed and being paid by the respondent to date. In my viewif the complainant chose not to transfer, she effectively resigned her position as in line with the Symantec decision the issue of redundancy does not arise, however that is not the reality of the relationship with the transferee since October 2018.

In relation to the complainants’ assertions that the new employer (Transferee) did not ensure that her terms and conditions transferred to its employment, did not consult in relation to the transfer and did not observe the complainants’ previous terms and conditions of employment, I do not accept this contention. In fact, from the documentation submitted in relation to this complaint and from the evidence of the former business development manager it is clear to me that the respondent went out of its way to assuage the concerns of the complainant at all times and wished to remain in discussions with her until all matters were clarified and agreed. It is also clear to me that the complainant was suspicious of the respondent from the beginning which possibly arose as a result of how the complainant perceived she was treated by the principal at the time and also the tone and contents of the letter of 11th December 2018 she received from the respondent.

In all of the circumstances of this complaint and having considered the submissions and evidence of the parties, I find that the new employer (Transferee) has not breached the regulations as claimed by the complainant.

CA-00026680-008 – Payment of Wages Act, 1991.

This complaint has not been adequately set out by the complainant. After the initial hearing of this complaint in July 2019 and prior to the hearing being reconvened, the complainant’s Solicitor was asked to submit calculations in relation to this issue. At the reconvened hearing in October 2021, adequate calculations were not submitted to substantiate the complaint and the complainant was unable to clarify in evidence the specific amounts and for what dates that she remains unpaid.

I note that during the hearing in October 2021, the issue of an additional 8% added to the hourly rate of pay in respect of annual leave, and previously paid by the transferor, was raised by the parties. It is quite possible that the ongoing loss of the €26.30 per week could reflect the fact that the transferee did not apply this additional 8% in respect of annual leave and rightly set to apply the payment of annual leave in compliance with the Act at the time of the complainant taking annual leave. This is one of the issues that would most likely have been resolved if meaningful discussions had taken place between the parties after the initial hearing in July 2019 but it is clear that this did not take place and the issue remains unresolved.

For completeness, the complainant’s solicitor was given an additional four weeks after the hearing in October 2021 to submit any supplemental information in relation to this issue and other outstanding monies that the complaint contends were due to her. The respondent would then be given four weeks to respond to such information, however, no further information was received.

In conclusion and on the basis of the complaint as submitted, I do not find that that there has been an unlawful deduction from the complainant’s earnings or that the respondent has failed to pay the complainant monies that were properly payable to her. Accordingly, the complaint does not succeed.

CA-00026680-009 -Protection of Employees (Fixed-Term Work Act) Act, 2003

The complainant has been employed by the school since 2007. The parties confirmed that the complainant signed 12-month fixed term contracts throughout her employment and that this practice continued in September 2018 as the transfer was in the process of taking place. The complainant did not engage with the respondent in relation to signing the new contract in September 2018 and the respondent has since accepted that the complainant is a permanent part time employee.

In my view, despite the complainant being given fixed term contracts each year by the school, the complainant became a permanent employee when her service with the school exceeded four years in line with the provisions of the Act. This would have occurred by operation of law at the material time unless the relevant contract contained objective reasons why this would not be the case.

As has been decided in Adj-00020783, the complainant is not a fixed term worker within the meaning of the Act and therefore does not have locus standi to make a complaint.

Note: I have considered the respondents position as set out in its correspondence dated 14th December 2021, however the complainant’s representative did not submit any supplemental submissions in relation to this complaint. Having considered the complaint as submitted and in the absence of further submissions from the complainant’s representative, it remains my view that the complainant is not a fixed term worker within the meaning of the Act.

CA-00026680-010 - Employment Equality Complaint Discrimination on the gender ground

The complainant asserts that she has been discriminated against on the gender ground and in her conditions of employment.  At the reconvened adjudication hearing, the complainant confirmed in evidence that she had no other grounds for her complaint other than to assert that her gender was the reason for her less favourable treatment in comparison to her male caretaker colleagues who remained employed directly by the school.

Burden of Proof

Section 85A of the Employment Equality Act, 1998 provides as follows:

85A. (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

I note that the complainant and her Solicitor at the reconvened adjudication hearing did not provide any evidence in relation to the complaint that the complainant had been discriminated against on the gender ground.

In relation to this issue, I note Labour Court Determination No: EDA0917 Arturs Valpeters v Melbury Developments Limited in which the Labour Court stated as follows:

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn………

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.

In the instant case, the complainant has made assertions that she was discriminated against on the gender ground but was unable to provide any evidence in relation to her complaint from which an inference of discrimination could be drawn. On that basis, I find that the complainant has failed to establish a prima facie case of discrimination.

CA-00026680-001, CA-00026680-003, CA-00026680-004 and CA-00026680-006- European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

Having considered the submissions and evidence of the parties, I find that the complaints are not well founded.

CA-00026680-008 – Payment of Wages Act, 1991

Having considered the submissions and evidence of the parties, I find that the complaint is not well founded.

CA-00026680-009 - Protection of Employees (Fixed-Term Work Act) Act, 2003

Having considered the submissions of the parties, I find that the complainant does not have locus standi to make a complaint under the Act

CA-00026680-010 – Discrimination complaint

For the reasons stated above, I find that the complainant has failed to establish a prima facie case of discrimination. Accordingly, I find that the complaint is not well founded.

Transfer of Undertakings, Regulation 8, Payment of Wages Act, Unlawful deductions, Fixed Term Worker,” locus standi” gender discrimination, prima facie case.

Case Law

Case Law cited by the Respondent representative

Jozef Maria Antonius Spijkers v Gebroeders Benedik Abbatoir CV and Alfred Benedik en Zonen BV (CaseC-24/85) [1986] ECR 1199, 18th March 1986 at paras 11 & 13

Hernándes Vidal S/A v Gomez Perez; Santer v Hoechstag; Gomez Montana v Claro Sol S/A and Red Sacional de Ferrocarriles Espanol (Renfe) Joined cases C-127/96, c-227/98 and C-74/97; [1999 IRLR 132, [1998] ECR-1-8179

Sanchez Hidalgo (Joined cases C-173/96 and C- 247/96 [1999] IRLR 136

Advocate General Sharpston (at 57): Federación de Servicios Públicos de la UGT (UGT-FSB) v Ayuntamiento de la Lines de ls conception. Maria del Rosario vecino Uribe, Ministerio Fiscal (Case C-151/09) [2010] ICR 1248

Symantec Limited v Leddy 2009 ELR 171

Katsikas v Konstantinidis [1992] ECR 1 6577

Case Law cited by the Complainant’s representatives

Symantec Limited v Leddy 2009 ELR 171

Labour Court Determination: Dermot Kelly v Euro Car Parks Ireland Limited TUD1810