ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025110

Parties:

Complaints:

Date of Adjudication Hearing: 13/02/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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 submitted that in August 2019 the Respondent was a Transferee of a hair salon business that she was employed with as a hair stylist from March 2015. The complaint refers to allegations of breaches to Regulation 10 of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulations), where the Complainant maintains that she was not informed by either the Respondent or the Transferor of a transfer of an undertaking of the hair salon which was part of a business she worked in, that she was not adequately consulted by either the Respondent or the Transferor of the transfer, and she was not adequately advised in relation to the transfer by the Respondent. The Complainant also maintained she was not paid her correct annual leave upon the termination of her employment, was not paid in lieu of notice upon her termination, and that she was notified prior to her return from maternity leave that she was not allowed to return to work.

Summary of Complainant’s Case:

The Complainant submitted that she commenced full time employment with the Transferor in March 2015 as a stylist. From 20th September 2018, she agreed to work on a part time basis where her hours were Thursday, Friday, and Saturday and where she was employed at premises A. The Complainant submitted her contract of employment stated her place of work was location A, but that she may be required from time to time to work in other locations.

She submitted that she commenced maternity leave on 20th April 2019 which was due to end on 19th October 2019.

The Complainant submitted that she was informed by her work colleagues on 29th June 2019 that the salon at location A was being sold. By letter dated 29th June 2019, received on 2nd July 2019, the Complainant was informed by the Transferor that the salon in location A was being sold and she was offered options of a new role in one of three alternative salons operated by the Transferor.

On 2nd July 2019 the Complainant contacted the Respondent by text seeking confirmation that the staff would continue to work at that place of business following the transfer. The Complainant maintained that the Respondent advised her that it was not taking all the employees and that the Transferor intended offering the Complainant a position in another salon.

The Complainant maintains she was the longest serving member of staff at the salon that was transferred and that five other members of staff at the time of the transfer were transferred to the Respondent as part of the transfer. She submitted that the Respondent has been trading from that location since 6th August 2019 and the salon was operated by the Respondent, who was the transferee, from that point. She further maintained that the Respondent was not operating any other salons aside from the salon in Location A.

The Complainant submitted that she responded to the Transferor by letter on 30th August 2019 asking for clarifications as to why she had not been transferred similar to her colleagues. The Transferor’s Area Manager responded in writing on 11th September 2019 advising the Complainant that they had other roles for the Complainant, and the Transferor sought to meet with her to discuss these. The Complainant maintained this correspondence did not address her query in relation to the transfer of her employment to the Respondent. The Complainant submitted that she attended a meeting on 24th September 2019 with the Transferor. The Complainant maintained that at this meeting she expressed her view that her employment should have been transferred to the Respondent if the salon had been sold as a ongoing concern. She advised that the Transferor disagreed with her on this matter on the basis the business was sold as a transfer of assets and that the Transferor could choose that the Complainant was to remain working for him and not be transferred to the Respondent.

The Complainant maintained she was unhappy with the response and her legal representative submitted a letter to the Transferor and the Respondent on 4th October 2019. In this letter, the Complainant contended that she was satisfied that a transfer occurred within the meaning of the 2003 Regulations and that her employment had automatically transferred to the Respondent on the date of the transfer. The Complainant stated in this correspondence that she was seeking acknowledgement within seven days that she was entitled to return to the salon at Location A after her maternity leave. The Complainant submitted that the Respondent’s legal representative replied on 17th October 2019 claiming that the Complainant remained an employee of the Transferor and where the letter confirmed that the Respondent had acquired the goodwill and business assets of the salon at location A.

In submitting her complaint the Complainant relied on Regulation 3 of the 2003 Regulations which stated that the Regulations should apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. The Complaint further contended that in accordance with Regulation 3 of the Regulations, a transfer had occurred as there was the transfer of an economic entity of the salon at location A which retained its identity; and where the salon was an organised grouping of resources which has the objective of pursuing an economic activity.

The Complainant also referred to Regulation 5(1) of the Regulations which specifies that the transfer of an undertaking, business or part of an undertaking of a business shall not in itself constitute grounds for dismissal by the Transferor or the Transferee and such a dismissal, the grounds for which or such a transfer, by a Transferor or a Transferee is prohibited.

Legal Submissions

The Complainant relied on jurisprudence with regard to Jozef Maria Antonius Spijkers -v- Gebroders BenedakAbattoir CV and Alfred Benedak Enconen BVC – 24/85 (1986), where the ECJ set out factors to enable parties to determine if a transfer of undertaking took place. With reference to these factors, the Complainant submitted that the operation of the salon at location A by the Transferor had been resumed by the Respondent (the Transferee) since 6th August 2019 at the same premises and with the majority of employees who had been previously employed by the Transferor. The Complainant further argued that the Respondent took over the tangible assets of the Respondent.

The Complainant also referred to the ECJ in Alber v Sodexho MM Catering GMBH and Sanrest (case 340/01) [2004] and submitted that in the within case the Respondent had taken over the customers of the Transferor for the salon at location A, and therefore argued, as laid down in the Spijkers decision cited above, that this amounted to a transfer upon which the 2003 Regulations would apply.

The Complainant further argued that in a case a Base Controller v a Hackney Cab Company (ADJ-14591, July 2019), the WRC relied upon the ECJ decision in Celtic Limited v Assley and Others (case C-478/03) [2005] in which the Court held that the date of a transfer… is the date in which responsibility as an employer for carrying on a business on the unit transferred moves from the Transferor to the Transferee. That date is a particular point in time which cannot be postponed to another date at the will of the Transferor or the Transferee. For the purposes of applying that provision, contracts of employment or employment relationships existing on the date of the transfer between the Transferor and the workers assigned to the undertaking transferred are deemed to be handed over, on that date, from the Transferor to the Transferee, regardless what has been agreed between the parties in that respect. The Complainant argued that in the Transferor’s letter of 29th June 2019 she was informed that the sale of the business to the Respondent was taking place. The Complainant therefore submitted that the contract of employment transferred to the Respondent at that time and that any arguments to the contrary between the Transferor and the Respondent, as the Transferee, is irrelevant.

In addition, the Complainant submitted that the Transferor’s letter of 29th June 2019 demonstrated that the Transferor had reached an agreement with the Respondent prior to the transfer date to the effect that the Complainant’s employment would not transfer across to the Respondent. The Complainant referred to the WRC decision in Paul McPartlin v Easy Fresh Ireland Limited (ADJ-00010845, October 2018) in which the EAT decision in Kevin Carroll v SR Technics Ireland Limited, UD 1419/2018 decided that the Respondent could reduce the workforce should organisational, technical or economic reasons dictate that this should be so but post transfer. On that basis, the Complainant argued that the changes to reduce workforce in the salon at location A could only take place post the transfer and therefore the Transferor’s letter dated 29th June 2018 negates any attempt by the Respondent or the Transferor to advance an argument that the Complainant’s dismissal was not prohibited for ETO reasons. The Complainant submitted that she was dismissed by reason of the transfer and the termination took effect on a date close to that of the transfer.

CA-00031949-003. Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)                                   

The Complainant submitted that she was dismissed by reason of the transfer of the business of the salon in location A to the Respondent who refused to meet its obligations under the Regulations to continue with her employment.

The Complainant submitted that the Respondent breached their obligations under the Regulations in issuing a letter dated 17th October 2019 which stated the Complainant’s employer was the Transferor and not the Respondent, despite the fact that the business had been transferred to the Respondent. The Complainant contended that in her case her employment was transferred on the date of the transfer and she was entitled to return to work to the Respondent on the expiry of her maternity leave, but the Respondent refused to allow her to do so. The Complainant maintained that by the Respondent issuing the letter of 17th October 2017 it in effect dismissed her from her job as it advised the Complainant was retained as an employee of the Transferor and that she was required to work in a different location with the Transferor.

On that basis the Complainant submitted that the Respondent, contrary to Regulation 5(1)of the Regulations (which states The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited) refused to accept the Complainant was in fact transferred, and such a refusal amounted to a dismissal of the Complainant.

CA-00031949-004, 006, and 008 Complaints under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)        

The Complainant submitted that she was not informed, adequately consulted, or adequately advised with by the Respondent in late June or early July 2019, as a Transferee, of the intention to transfer the business.

The Complainant also relied on Regulation 8 of the 2003 Regulations which requires under 8(1) that the Transferor and Transferee concerned in a transfer should inform the respectful employees’ representatives effected by the transfer of:

• the date of the proposed date of transfer;

• the reasons for the transfer;

• 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

any measures envisaged in relation to the employees.

CA-00031949-010 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                              

The complaint submitted that she had only received three days annual leave in 2019, namely between 11th to 13th April 2019 inclusive. The Complainant submitted she was entitled to 58.3 hours of annual leave untaken amounting to €804.54.

CA-00031949-011 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                                  

The Complainant submitted that contrary to S26 of the Maternity Protection Act 1994 the Respondent breached their obligations under the Act in issuing a letter dated 17th October 2019 which indicated the Complainant’s employer was the Transferor despite the fact that the business had been transferred to the Respondent. The Complainant advised that she relied on WRC decision ADJ-00024224, A Cleaner v A Contract Cleaning Company where in that case a complainant submitted a complaint of Unfair Dismissal when she was informed whilst on protective leave that her position had been made redundant following the employer’s unsuccessful bid to renew a cleaning contract. Quoting the Adjudicator in that case, the Complainant contended [a]s the name of the statute makes clear, this is a measure to protect women who are on maternity leave against a number of possible determinants, the most important of which is the loss of their employment while on the period of protected leave.The Complainant contended that in her case her employment was transferred on the date of the transfer when she was on maternity leave, and she was entitled to return to work to the Respondent on the expiry of her maternity leave but the Respondent refused to allow her to do so.

Summary of Respondent’s Case: CA-00031949-003 Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)     

The Respondent denied that a transfer had taken place. It submitted that it corresponded with the Complainant about the situation on 17th October 2019 as summarised above and that it maintained in this correspondence that the Complainant had not been transferred. The Respondent contended that the Complainant remained an employee of the Transferor and it therefore had no obligation to inform, consult, or advise the Complainant on matters relating to a transfer as it did not apply in this situation.

CA-00031949-010 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                               

In response to the complaint that Complainant did not receive payment in lieu of her two weeks’ notice period, the Respondent maintained that it was not a transferee of the Complainant and therefore it was not responsible for her wages. The Respondent argued that the Complainant was not dismissed by them. Accordingly, it maintained that it had no liability to the Complainant.

CA-00031949-012 Complaint under Section 30 and 31 of the Maternity Protection Act 1994                                                                        

The central issue to the within complaint is whether the Complainant has protection under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the regulations).Regulation 3(1) of the Regulations state: These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.Regulation 3(2) states Subject to this Regulation, in these Regulations -“transfer” means the transfer of an economic entity which retains its identity; “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.Having considered the evidence provided I am satisfied the business entity at location A, where the Complainant was employed since March 2015, was subject to a transfer, and where the Respondent was the Transferee of the business from the Transferor. The Complainant was advised in writing by the Transferor in a letter dated 29th June 2019 that she was not to be transferred with the business. Having reviewed the transfer agreement between the Respondent and the Transferor, all staff with the exception of the Complainant were transferred. The Complainant was on maternity leave during this period. It appears the Respondent began operating the salon at location A from 6th August 2019.There was ongoing correspondence between the Complainant and the Transferor regarding the Complainant’s status and where the Complainant took legal advice and was represented by a solicitor in her communications with both the Respondent and the Transferor from 4th October 2019. In this correspondence the Complainant contended that she did not wish to remain with the Transferor but wanted to be subject to the transfer and to be treated in a similar manner to the other employees at location A. By way of a letter dated 17th October 2019 the Respondent advised the Complainant had not been transferred on the basis the Transferor had not transferred the Complainant and that her contract of employment required the Complainant to work in other locations in the Transferor’s business as required.  

The factors to be considered as to whether a transfer of an undertaking takes place between parties has been addressed by the ECJ in Jozef Maria Antonius Spijkers -v- Gebroders BenedakAbattoir CV and Alfred Benedak Enconen BVC – 24/85 (1986. The factors set out by ECJ to enable parties to determine if a transfer of undertaking took place are as follows:

Regulation 4(1) of the Regulations affords The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

Findings and Conclusions:

It further denied that the Complainant was treated differently due to her maternity leave and her protective leave. It argued that she was not invited to the consultation process with other staff because her job was not being transferred and it was therefore not required to do so. It therefore maintained that it did not treat the Complainant less favourably or differently as a consequence of the Complainant being on protective leave.

The Respondent therefore denied that it was in breach of any obligations under the Maternity Protection Act as the Complainant had not been transferred to the Respondent.

In response to the Complaint that prior to the expiry of the Complainant’s maternity leave she was notified in writing on 17th October 2019 by the Respondent that she was not allowed return to her place of work, the Respondent maintained that it did not prevent the Complainant from returning to her work. As outlined above, the Respondent contended that the Complainant was not transferred upon the transfer of the business at location A, but that in accordance with the Complaint’s contract of employment with the Transferor, it understood the transferor had intended to relocate the Complainant to another of its locations.

CA-00031949-011 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                                 

In response to the complaint that the Complainant only received 3 days annual leave prior to her dismissal, the Respondent maintained that it was not a transferee of the Complainant and therefore it was not responsible for her annual leave.

CA-00031949-004, 006 and 008 Complaints under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)        

Accordingly, the Respondent maintained that the Complainant was never transferred as in accordance with her contract she was required to work in other parts of the Transferor’s business. The Respondent submitted that the Complainant failed to make any further contact with the Respondent on the matter and instead issued a complaint to the WRC.

The Respondent acknowledged that the Transferor wrote back to the Complainant on 11th September 2019 where it stated that they had some opportunities in the company they would like her to consider given her extremely high level of hairdressing and previous management training. It understood that the Complainant subsequently met with the Transferor and the Complainant had indicated to the Transferor that she would consider the issue and would be seeking additional unpaid leave at the end of her maternity leave. The Respondent acknowledged it received a letter on 4th October 2019 from the Complainant’s legal representative which was also addressed to the Transferor. The Respondent confirmed it responded this letter on 17th October 2019 advising that the Complainant had been retained as an employee with the Transferor and that it understood in accordance with the terms and conditions of her employment contract that she would be required to work in one of the other salons owned by the Transferor.

In support of the position that the Compliant was never transferred, the Respondent advised that the Transferor wrote to the Complainant on 29th June 2019 advising her that the salon in location A was being sold and where it outlined options for the Complainant to consider prior to her return date from maternity leave. It understood the Transferor asked the Complainant to a meeting to discuss the options closer to her return date. The Respondent acknowledged that the Complainant wrote back to the Transferor on 30th August 2019 thanking them for the letter of 29th June 2019 and which noted the end of the Complainant’s maternity leave was scheduled for 19th October 2019. The Respondent acknowledged that in this letter the Complainant queried why she had not been given the option to transfer to the Respondent, which was her contractual place of work, and that she understood she was legally entitled to transfer on the same pay and conditions on the date of the transfer with her continuous service recognised. The Respondent acknowledged the Complainant further advised that she did not receive any formal communication from the Respondent about the transfer and that she had asked at that time if the situation could be reviewed.

It maintained that the Transferor continued to operate three other salons and had retained the Complainant on the basis that it needed her skills and offered her work in one of its other salons as a Manager. The Respondent referred to the contract of employment of the Complainant with the Transferor which mandated that whilst her place of work was in location A, she was required to work in other salons.

The Respondent denied that it dismissed the Complainant. The Respondent maintained that the services of the Complainant were always required by the Transferor due to her experience and skills, and it was never the intention of the Transferor to transfer the Complainant on the sale of the business at location A. The Respondent argued that the Complainant was a retained employee by the Transferor under the Business Transfer Agreement that was made between itself and the Transferor. This agreement identified that the Complainant was in a schedule of employees that were not to be transferred. The Respondent acknowledged that whilst all other employees at the salon were transferred, the Complainant was not transferred, and this was clearly demonstrated in the agreement between itself and the Transferor.

The Respondent denied the complaints. The Respondent maintained that the Complainant was never subject to a transfer of undertakings and that she chose not to return to work following her maternity leave and by virtue of that act, she had resigned her position.

CA-00031949-012 Complaint under Section 30 and 31 of the Maternity Protection Act 1994                                                                     

The Complainant submitted that upon her termination of employment on 19th October 2019, she dd not receive payment in lieu of her two weeks’ notice and is seeking two weeks pay of €345 gross per week.

The Complainant submitted that she did not receive her paid holiday/annual leave entitlements upon the termination of her employment on 17th October 2019 contrary to her statutory entitlements under S19 of the Organisation of Working Tine Act 1997, as amended.

The type of undertaking/business concerns;

Whether the undertakings tangible assets (such as buildings and equipment) transferred;

The value of its tangible assets at the time of the transfer;

Whether the majority of its employees were taken over by the new employer;

Whether its customers were transferred;

The degree of similarity between the activities carried on before and after the transfer; and

The period, if any, for which those activities were suspended.As the TUPE regulations applied for this case I uphold that the Respondent was obliged under Regulation 4 of the Regulations, as a Transferee, in that the transferor’srights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. I therefore find that the Complainant was in fact an employee that is deemed to have been transferred unless, by agreement, the employee is not transferred. It is evident in this case that the Complainant did not consent to alternative arrangements and therefore I find that she was protected under the Regulations.

CA-00031949-003 Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)                                   

As the TUPE regulations applied for this case I uphold that the Respondent was obliged under Regulation 4 (2) of the Regulations, as a Transferee, in that following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.I find that the letter of 17th October 2019 from the Respondent to the Complainant, which advised the Complainant had not been transferred, represents a disregard by the Respondent of it obligations under Regulation 4 of the Regulations as a Transferee, and therefore amounts to a decision by the Respondent to dismiss the Complainant.  

CA-00031949-004, 006 and 008 Complaints under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)        

Regulation 8 of the Regulations require:         (a) the date or proposed date of 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 (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.(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.In light of the fact that the Respondent was a Transferee of the business entity at location A, I find the Respondent was required to meet its obligations under Regulation 8 (1), (3) and (4) of the Regulations but that it omitted to provide the Complainant with the correct information as required under the Regulations; that the Respondent failed to adequately consult with the Complainant, and that the Respondent failed to adequately advise the Complainant in late June or early July 2019 of the intention to be a Transferee of the business. Had the correct information been provided in the times prescribed under the Regulations the matter might have been resolved in a timelier manner.

CA-00031949-010 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                              

Section 19(1)(c) of the Organisation of Working Time Act 1997 states an employee shall be entitled to paid annual leave equal to 8 per cent of the hours, he or she works in a leave year (but subject to a maximum of 4 working weeks. On the basis the Complainant was entitled to 83.3 hours annual leave for the period worked during 2019, and had availed of 25 hours annual leave, I find that she was entitled to 58.3 at her hourly pay of €13.80 per hour, totalling €804.54. The amount of annual leave entitlement was not disputed at the hearing.Regulation 4(1) of the Regulations requires The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. As I find the Complainant’s terms as and conditions were transferred to the Respondent, I conclude the Respondent was obliged to continue to observe the terms and conditions and is therefore responsible to provide the Complainant with her annual leave entitlement at the time of termination of her employment.  The Complainant submitted that she did not receive payment in lieu of her two weeks’ notice period following the termination of her employment on 17th December 2019.

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

CA-00031949-011 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                                 

 The Complainant submitted that she only received 3 days annual leave prior to her termination of employment.

 It is noted that the Respondent maintained the Complainant was not being transferred and therefore the Regulations do not apply. However as already adjudicated above, the Regulations did apply to the Complainant. Accordingly, I find Regulation 8 of the Regulations applied. I therefore find that the Respondent erred in relation to deciding that it was not obliged to act as a transferee of the Complainant.

(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.

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

         (b) the reasons for the transfer;

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

The Complainant submitted that she was not informed, not adequately consulted with, nor adequately advised by the Respondent in late June or early July 2019 of the intention to transfer the business to the Transferee.

An employee is therefore deemed to have been transferred unless, by agreement, the employee is not transferred. It is evident in this case that the Complainant did not consent to alternative arrangements and therefore I find that she was protected under the Regulations.

The Complainant submitted that she was dismissed by reason of a transfer and where the Respondent wore to her on 17th October 2019 maintained her job had not been transferred.

Having considered the evidence presented for the within case, I am satisfied that the tangible assets of the salon at location A were transferred Respondent to the by the Transferor; that all of the employees with the exception of the Complainant were transferred; that similar activities (hair dressing) continued with the business at location A after the transfer; and customers were transferred. On that basis I find the business and economic entity that operated at location A was transferred to the Respondent and accordingly the Regulations applied in this instance.

the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

in the case of a deduction, the employee has given his prior consent in writing to it.Section 4 (b) of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of two years or more, but less than five years, two weeks notice.It is noted the Respondent denies that it terminated the Complainant’s contract of employment in that it maintained she had not been transferred and a position was still available to with the Transferor upon her return form maternity leave.However, I have already upheld that the Complainant’s employment was transferred in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. Accordingly, under Regulation 4(1) of the Regulations The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. As I find the Complainant’s terms as and conditions were transferred to the Respondent, I conclude the Respondent was obliged to continue to observe the terms and conditions. The Respondent’s legal representative wrote to the Complainant on 17th October 2019 informing the Complainant that she was not an employee of the Respondent, which was incorrect. On that basis I am satisfied that this letter amounted to a termination of the Complainant’s employment.   The Complainant did not receive payment in lieu of notice.I therefore find that the Respondent is in breach of its obligations under the Minimum Notice & Terms of Employment Act, 1973 and by failing to pay the Complainant her statutory right to two weeks’ pay and the non-payment of this notice amounts to an unlawful deduction under the Payment of Wages Act.

CA-00031949-012 Complaint under Section 30 and 31 of the Maternity Protection Act 1994                                                                         

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-00031949-003 Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)                                   

As I have found the Respondent was the Transferee of the business it was obliged to meet the employment contract entitlements of the Complainant. However, but by its letter dated 17th October 2019 the Respondent refused to allow the Complainant return to her work at location A which was a business entity for which it was the Transferee under the regulations. I therefore declare the complaint to be well founded and that the Respondent by its actions unfairly dismissed the Complainant on 17th October 2019. 

CA-00031949-004, 006 and 008 Complaints under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)        

Regulation 10 of the Regulations requires that I make a decision in accordance with the relevant redress provisions. The evidence supports that the Respondent failed to meet its obligations under Regulation 8 of the Regulations to provide information and consultation about the Transfer. The Respondent through its legal representative informed the Complainant on 17th October 2019, two days before her return to work from maternity leave, that the Transferor was entitled to retain the Complainant and not transfer her as her contract of employment referred to the company reserving the right to require the Complainant to work in any other salon. However, as the Regulations applied to the Complainant, the Respondent was obliged to adhere to Section 8 of the Regulations, but it failed to provide the information as set out in Regulation 8(1).In accordance with the Regulation 10(5) I find this complaint is well founded and require the employer to pay to the employee compensation of 4 weeks remuneration at €345 per week amounting to a sum of €1,380.

CA-00031949-010 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                             

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 19 of that Act. As I have found the Complaint’s terms and conditions of employment, in accordance with Regulation 4(1) of the Regulations, were transferred to the Respondent on the date of the transfer of the business, I therefore find the complaint to be well founded. The Complainant submitted that she did not receive payment in lieu of her two weeks’ notice period. As I have found the Complaint’s terms and conditions of employment, in accordance with Regulation 4(1) of the Regulations, were transferred to the Respondent on the date of the transfer of the business I find the complaint against the Respondent to be well founded. The respondent erred by informing the Complaint in by letter dated 17th October 2019 that it was not responsible for her employment The Complainant submitted that prior to the expiry of her maternity leave she was notified in writing that she was not allowed return to work and this amounted to her dismissal.Section 32 of the Maternity Protection Act 1994 requires I make a decision in relation to contravention of entitlements under the Act.I therefore find the complaint against the Respondent to be well founded. 

I aware the Complainant compensation of 10 weeks remuneration at the rate of €345 per week amounting to €3,450 to be paid by the Respondent which I consider just and equitable having regard to all of the circumstances.

I have found the Complaint’s terms and conditions of employment, in accordance with Regulation 4(1) of the Regulations, were transferred to the Respondent on the date of the transfer of the business. Accordingly, the Respondent was obliged under S 26 of Maternity Protection Act 1994 to allow the Complainant return to work in the business entity at location A on 19th October 2019 which was the date of expiry of her maternity leave. The Respondent issued a letter to the Complainant on 17th October 2017 and advised her incorrectly that her employment remained with the Transferor and refused her entitlement to return to her work. This letter amounted to the dismissal of the Complainant.

CA-00031949-012 Complaint under Section 30 and 31 of the Maternity Protection Act 1994                                                                     

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages, I direct the Respondent to pay the Complainant compensation of two weeks’ pay of €345 gross per week amounting to €690 after the making of any lawful deduction.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act.

CA-00031949-011 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                                 

I require the Respondent to pay the Complainant compensation of 58.3 hours of annual leave untaken amounting to €804.54.

The Complainant submitted that she only received 3 days annual leave prior to her dismissal.

 I therefore find the complaint that the Complainant was not correctly informed, was not adequately consulted with, nor adequately advised by the Respondent in late June or early July 2019 of the intention to transfer the business to the Transferee is upheld.

The Complainant submitted that she was not adequately informed, not adequately consulted and not properly advised by Respondent in relation to the transfer contrary to Regulation 8 of the Regulations.

 It is noted that the Complainant commenced alternative employment on 18th November 2019 at a gross rate of pay of circa €14.50 per hour which is slightly higher than her rate of pay before her dismissal. I therefore required the Respondent to pay the Complainant five weeks pay at €345 gross per week amounting to €1,725 gross after the making of any lawful deduction.

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that I make a decision as to whether the Respondent has contravened any of the Regulations. The Complainant submitted that she was dismissed by reason of a transfer and that the Respondent, as the Transferee failed to allow her return to work following her maternity leave and after the transfer had occurred.

Decision:

As the Maternity Protection Act 1994 is a measure to protect women who are on maternity leave against a number of possible determinants, the most important of which is the loss of their employment while on the period of protected leave, I find that the Respondent omitted to meet its obligations under S26 of the Act. I find this breach to be significant particularly in light of the representations made to the Respondent by the Complainant’s legal representative on 4th October 2017 and at a time when the Complainant was on maternity leave.

As I have found that the Complaint’s job was subject to the protections afforded to her under the European Communities (Protection of Employment on Transfer of Undertakings) Regulations 2003, and that her job was in fact transferred, I find that her employment obligations also transferred to the Respondent. I therefore uphold this complaint against the Respondent and find that the Respondent was obliged to meet the Complainant’s rights under her contract of employment existing at the date of the transferrin accordance with Regulation 4(1) of the Regulations. As such the respondent is deemed to be the successor in accordance with the Maternity Protection Act 1994.

I find that when the Complainant sought to return to work at location A following her maternity leave, she was advised by the Respondent that her employment had been retained by the Transferor and she was not employee by not the Transferee.  

Section 26 of the Maternity Protection Act 1994 states: (1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work— (a) with the employer with whom she or he was working immediately before the start of that period or, where during the employee’s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence.

The Complainant submitted that prior to the expiry of her maternity leave he was notified in writing by the Respondent on 17th October 2019 that she was not allowed return to work.

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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Dated:   12th February 2021