ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020783

Parties:

	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

Complaints:

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-00026680-002	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-00026680-005	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-00026680-007	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-00027453-001	28/02/2019

Date of Adjudication Hearing: 4/7/2019 and 12/10/2021

Workplace Relations Commission Adjudication Officer: Andrew Heavey

Procedure:

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

Background:

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 28th February 2019. Four of the complaints are addressed under the within Adjudication Reference No; Adj 000-20783. The remaining seven complaints are addressed in Adjudication Reference No; Adj 000-20782.

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 subsequently 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.

Summary of Complainant’s Case:

CA-00026680-002, CA-00026680-005 and CA-00026680-007 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

The complainant submitted three complaints in relation to the TUPE regulation; that the transferor did not ensure that her terms and conditions of employment transferred to the respondent, that the transferor did not consult with her in relation to the transfer and that the transferor did not advise her in relation to the transfer.

CA-00027453-001 – Protection of Employees (Fixed-Term Work Act) Act, 2003

The complainant contends that the respondent has breached the legislation by virtue of the number of fixed term contracts that the complainant has been issued.

Summary of Respondent’s Case:

CA-00026680-002, CA-00026680-005 and CA-00026680-007 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

The respondent contends that it made every effort to establish the complainant’s terms and conditions of employment from the transferor and to ensure that the complainant received all applicable rights and entitlements on transfer to its employment. The respondent outlined the efforts it made in relation to reaching agreement with the complainant on all outstanding issues relating to her employment.

CA-00027453-001 – Protection of Employees (Fixed-Term Work Act) Act, 2003

At the initial hearing of this complaint in July 2019, 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 engaged at the time of the transfer.

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.

Findings and Conclusions:

CA-00026680-002, CA-00026680-005 and CA-00026680-007 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003) provides as follows:

8(1) The transferor and transferee concerned in the transfer shall inform their respective employees representatives affected by the transfer of

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

and

(d) any measures envisaged in relation to the employees.

(2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d) any measures envisaged in relation to the employees.

(7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations

The complainant was notified of the transfer by a letter dated the 27th August 2018 from the Principal of the School. The letter indicates an intention to outsource the cleaning activities to the respondent and that employees who transfer will continue to work as normal with the same pay and other terms and conditions of employment as before. The letter also indicates that the respondent (Transferee) will meet with staff at a convenient time to explain how operations will be managed and to explain the applicable terms and conditions of employment of those transferring. The letter confirms that staff will be met individually but may be accompanied or represented if required. The letter concludes by stating that if any questions arose, the complainant could contact the principal at any time.

The principal also gave evidence at the adjudication hearing in October 2021 in relation to meeting with the complainant on August 27th 2018 concerning the rationale behind the transfer on the basis of the school having been extended and the expertise that the cleaning company would bring. The principal stated in cross examination that options were being explored in the Spring of 2018 in relation to the possible options and that although he met with the complainant in August 2018 there was no further meetings with the complainant thereafter.

The complainant stated that the principal informed her and her colleagues that “the contract was going ahead whether you like it or not” and that the complainant was given her p45 and told that she was no longer employed by the school and would be employed by the contract cleaning company going forward.

Observations

There are obviously differences of opinion between the complainant and the school principal. At the adjudication hearing in October 2021, it was stated that there had been issues in the past with the principal and that he had been somewhat insensitive when informing the complainant that her employment with the school was ending and that she was transferring to the respondent. The principal denied that he had treated the complainant unfairly during the process or when informing her of the transfer.

Nothwithstanding the interpersonal elements of the complaint, I must consider if the principal’s letter of 27th August 2018 meets the requirements of Regulation 8. It is accepted that there were no further meetings between the principal and the complainant and having considered the contents of the letter, and the requirements of Regulation 8, I find that the efforts of the school as transferor did not meet the required standard in advising and consulting with the complainant and ensuring that her terms and conditions of employment were notified to the respondent at the time.

On that basis I am satisfied that there is merit in the complaint.

CA-00027453-001 – Protection of Employees (Fixed-Term Work Act) Act, 2003

The complainant has been employed as a cleaner at the school since 2007. At the initial adjudication hearing into the complaint, the respondent acknowledged that following the transfer the complainant was asked to sign a fixed term contract but that this was on the basis of the information it had received from the school in relation to the transfer. The respondent acknowledged that the workers are permanent part time employees although it was impossible to verify these issues as the complainant would not engage in relation to her terms and conditions of employment.

At the reconvened adjudication hearing in October 2021, the complainant’s Solicitor was given an additional four weeks to address the specifics of the complaint in relation to the complainant having “locus standi” to bring a complaint under the Act and other issues relating to the complaint. The complainant’s Solicitor did not furnish any supplemental submissions on this issue.

Having considered the matter, it appears to me that the complainant is a permanent part time employee who works during the school term but does not work during the summer months. On the basis that the complainant is not a fixed term worker within the meaning of the Act, I find that the complainant 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.

Decision:

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

CA-00026680-002, CA-00026680-005 and CA-00026636-007 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

Having considered the submissions of both parties, I find that the complaints are well founded. The respondent is directed to pay the complainant compensation in the sum of four gross weeks’ pay as follows:

CA- 00026680-002 – (failure to ensure terms and conditions transferred to respondent)

1 weeks’ gross pay

CA-00026680-005 – (failure to consult in relation to the transfer)

2 week’s gross pay

CA-00026680-007 – (failure to advise in relation to the transfer)

1 week’s gross pay

CA-00027453-001 – 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.

Dated: 17/12/2021

Workplace Relations Commission Adjudication Officer: Andrew Heavey

Key Words:

TUPE, consultation, fixed term worker, locus standi