ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025112

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 Transferor 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 Transferee 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 Transferee of the transfer, and she was not adequately advised in relation to the transfer. 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 the termination of her employment which occurred in October 2019 upon her attempt to return to work following a period of maternity leave, 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 Respondent 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 Respondent 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 Respondent.

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

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

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

The Complainant maintained she was unhappy with the response and her legal representative submitted a letter to the Respondent on 4th October 2019 and the letter was also issued to the Transferee. 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 Transferee 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 Transferee’s legal representative replied on 17th October 2019 claiming that the Complainant remained an employee of the Respondent and where the letter confirmed that the Transferee had acquired the goodwill and business assets of the Respondent.

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 Respondent (the Transferor) had been resumed by the Transferee since 6th August 2019 at the same premises and with the majority of employees who had been previously employed by the Respondent. The Complainant further argued that the Transferee took over the tangible assets of the Respondent.

The Complainant further 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 Transferee had taken over the customers of the Respondent 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 Respondent’s letter of 29th June 2019 she was informed that the sale of the business to the Transferee was taking place. The Complainant therefore submitted that the contract of employment transferred to the Transferee at that time and that any arguments to the contrary between the Transferor and the Transferee is irrelevant.

In addition, the Complainant submitted that the Respondent’s letter of 29th June 2019 to the Complainant demonstrated that the Respondent had reached an agreement with the Transferee prior to the transfer date to the effect that the Complainant’s employment would not transfer across to the Transferee. 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 Respondent’s letter dated 29th June 2018 negates any attempt by the Respondent or the Transferee 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-00031949-005/007/009 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 of the intention to transfer the business to the Transferee.

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-00032023-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

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 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-00032023-003 Complaint under section 6 of the Payment of Wages Act, 1991

The Complainant submitted that upon her termination of employment on 17th October 2019, she did not receive payment in lieu of her two weeks’ notice and is seeking two weeks pay of €345 gross per week.

CA-00032023-004 Complaint under Section 30 and 31 of the Maternity Protection Act 1994

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 indicate the Complainant’s employer was the Respondent despite the fact that the Respondent had transferred the business to the transferee. 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, the Complainant maintained the complaint under Section 30 and 31 of the Maternity Protection Act 1994 was upheld on the basis [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 and she was entitled to return to work to the Transferee on the expiry of her maternity leave but the Transferee refused to allow her to do so.

Summary of Respondent’s Case:

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.

The Respondent maintained that the services of the Complainant were always required due to her experience and skills, and it was never the intention of the Respondent to transfer the Complainant on the sale of the business at location A. The Respondent argued that the Complainant was a retained employee under the Business Transfer Agreement that was made between itself and the Transferee. 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 the Respondent and the Transferee.

The Respondent referred to the contract of employment of the Complainant which mandated that whilst her place of work was in location A, she was required to work in other salons. It maintained that it continued to operate three other salons. The Respondent submitted that it only transferred the salon in which the Complainant had worked in, and offered her work in one of its other salons as a Manager. It further maintained that the other salons were more approximate to where the Complainant resided.

In support of its position, the Respondent advised that it 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. The options included a position on the same pay and conditions in one of three other salons operated by the Respondent and where they could discuss changing working days and hours to suit the Complainant. It asked the Complainant to a meeting to discuss the options closer to her return date and should she have any concerns that she was not to hesitate to contact the Respondent in the interim. The Respondent acknowledged that the Complainant wrote back to them on 30th August 2019 thanking them for the letter of 29th June 2019 which noted the options that were outlined following the end of her maternity leave which 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 transferee, 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 Transferee, and she asked at that time if her query could be reviewed.

The Respondent acknowledged it 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. They were hoping to discuss an opportunity for the Complainant to move into management. The Respondent subsequently met with the Complainant and submitted that the Complainant indicated she would consider the issue and she would be seeking additional unpaid leave at the end of her maternity leave. However, the Complainant did not respond directly to the Respondent after that meeting. It acknowledged it received a letter on 4th October 2019 from her legal representative which was also addressed to the Transferee.

The Respondent confirmed it did not respond to that letter at the time as it did not deem the Complainant’s job had been transferred. It maintained that it wished to retain her as there was work in its other businesses and it was awaiting the Complainant’s response on her return from maternity leave to progress that matter. The Respondent acknowledge the Transferee wrote to the Complainant on 17th October 2019 advising that it understood the Complainant had been retained as an employee and that in accordance with the terms and conditions of her employment contract with the Respondent that she would be required to work in one of its other salons.

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 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 Complainant questioned how they had ended up in this situation.

CA-00031949-005,007 and 009 Complaints 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 sale of its business in location A and as summarised above it engaged with the Complainant in written correspondence and in a meeting that the Complainant had not been transferred. The Respondent contended that it was awaiting the Complainant’s return to work form her protected leave to finalise the role for the Complainant.

CA-00032023-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

In response to the complaint that Complainant only received 3 days annual leave prior to her termination of employment, the Respondent acknowledged that the Complainant was entitled to the untaken annual leave and did not dispute that entitlement.

CA-00032023-003 Complaint under section 6 of the Payment of Wages Act, 1991

In response to the complaint that Complainant did not receive payment in lieu of her two weeks’ notice period, the Respondent maintained that it did not terminate the Complainant’s contract of employment and that she decided to leave of her own accord. It further submitted that it was never the intention of the Complainant to return to work following her maternity leave as she has requalified as a Special Needs Assistant and was working in that capacity t the time of the hearing.

The Respondent denied that the Complainant was entitled to payment in lieu of notice or that it wrongfully deducted such payment on the basis the Complainant had failed to return back to work after her maternity leave. It argued that it had retained her, it had informed her of that decision, it had written to her, it had met her, and it understood that she was considering matters prior to her return to work. Accordingly, it maintained the Complainant was not dismissed and as she was retained.

CA-00032023-004 Complaint under Section 30 and 31 of the Maternity Protection Act 1994                                                                     

The Respondent maintained that it did not prevent the Complainant from returning to 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 it had sought her to work in another of its locations as a manager of the business. It was awaiting her return to work from maternity leave before finalising these arrangements. It argued that the Complainant left a position that was available to her to pursue an alternative career.

The Respondent therefore denied that it was in breach of its obligations under the Maternity Protection Act. It maintained that the Complainant’s job was available to her upon her return from maternity leave. It also maintained that she was not selected for a transfer as she was retained and the Respondent had informed her of this, consulted with her, and engaged with her during her maternity leave to explain that the transfer did not impact on her employment.

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 is not being transferred and it was therefore not required to do so. It argued that only one of its shops were transferred and therefore there was no right on behalf of the Complainant or obligation on behalf of the Respondent to transfer the Complainant under the 2003 Regulations. It therefore maintained that the Complainant’s job was secure, there was future work for her, and she was not treated less favourably or differently as a consequence of being on protective leave.

Findings and Conclusions:

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 Transferor of the business to a Transferee. Having reviewed the transfer agreement between the Transferor and transferee, all staff with the exception of the Complainant were transferred from the Respondent to the Transferee. The Complainant was on maternity leave during this period. The Complainant was advised in writing by the Respondent in a letter dated 29th June 2019 that she was not to be transferred with the business.

From 29th June 2019 there was ongoing correspondence between the Complainant and the Respondent regarding the Complainant’s status. It appears the Transferee began operating the salon at location A from 6th August 2019. Ultimately the Complainant took legal advice and was represented by a solicitor in her communication with the Respondent on 4th October 2019. In this correspondence the Complainant contended that she did not wish to remain with the Respondent but wanted to be subject to the transfer and to be treated in a similar manner to the other employees at location A. The Respondent did not reply to this letter.

By way of a letter dated 17th October 2019 the Transferee responded and advised the Complainant had not been transferred on the basis the Respondent had not transferred the Complainant and that her contract of employment required the Complainant to work in other locations in the Respondent’s business as required. The Respondent had earlier advised the Complainant that it deemed her to be a skilled and experienced employee it intended to deploy her elsewhere in the business. (It is noted a conflict of evidence exists regarding the contract of employment. The Complainant presented a signed contract which is worded differently to the unsigned contract presented by the Respondent. The signed contract states that the Complaint will be required to be flexible in this position and must be prepared to undertake such other duties as may be assigned to you by the company from time to time and may be for such subsidiary companies as the company may require).

Regulation 4 of the Regulations affords (1) 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. (2) 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.

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:

• 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.

Having considered the evidence presented for the within case, I am satisfied that the tangible assets of the salon at location A were transferred by the Respondent to the Transferee; 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 and where the Regulations applied in this instance.

As the TUPE regulations applied for this case I uphold that the Respondent was obliged under Regulation 4 of the Regulations, as a Transferor that its 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. I therefore find that the Complainant was in fact an employee that is deemed to have been transferred unless, by agreement with the employee, 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-00031949-005, 007, and 009 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 not informed, adequately consulted with, or adequately advised by the Respondent in late June or early July 2019 of the intention to transfer the business to the Transferee.

Regulation 8 of the Regulations require:

(1)   The transferor and transferee concerned in a 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.

It is noted that the Respondent maintained the Complainant was not to be 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 note correspondence between the Complainant and the Respondent did occur from 29th June 2919 to 4th October 2019, including a meeting between the parties. Correspondence included representations by the Complainant’s legal representative. I therefore find that the Complainant was informed of the intention to transfer the business, but the Respondent erred in relation to deciding that it was not obliged to transfer the Complainant.

In light of this decision, I find the Respondent failed to meet its obligations under Regulation 8 (1), (2) and (4) of the Regulations and 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 transfer the business to the Transferee. Had the correct information been provided in the times prescribed under the Regulations the matter might have been resolved in a timelier manner.

CA-00032023-002 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 for the period worked during 2019 and had availed of 25 hours annual leave I find that she was entitled to 58.3 hours at her hourly pay of €13.80 per hour, totalling €804.54. The amount of annual leave entitlement was not disputed by the parties.

As I find the Complainant’s terms as and conditions were transferred to the Transferee, I do not find that the Respondent had an obligation to the Complainant from the time of the transfer and therefore I do not uphold this complaint against the Respondent.

CA-00032023-003 Complaint under section 6 of the Payment of Wages Act, 1991

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 had not transferred her and that a position was still available to her upon her return to work.

As I find the Complainant’s terms as and conditions were transferred to the Transferee, I do not find that the Respondent had an obligation to the Complainant from the time of the transfer, and therefore I do not uphold this complaint against the Respondent.

CA-00032023-004 Complaint under Section 30 and 31 of the Maternity Protection Act 1994                                                                     

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.

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

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 (the regulations) and that her job was in fact transferred, I find that her employment obligations also transferred to the Transferee. I therefore do not uphold this complaint against the Respondent, and find that the Transferee was obliged to meet the Complainant’s rights under her contract of employment that existed at the date of the transfer in accordance with their obligations under Regulation 4(1) of the Regulations and therefore the obligations under S.26 of the Maternity Protection Act 1994.

As this stature 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 omission of the Transferee to meet its obligations following the transfer of the business to be a significant breach, particularly in light of the representations made to the Transferee at a time when the Complainant was on maternity leave.

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-00031949-005,007, and 009, 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. I note that the evidence supports the Respondent did communicate and meet with the Complainant and advised her that it held the view it 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 I find it failed to provide the information as set out in Regulation 8(1).

I 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.

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 €1,380.

CA-00032023-002 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 Transferee on the date of the transfer of the business I do not find the complaint against the respondent to be well founded.

CA-00032023-003 Complaint under Section 6 of the Payment of Wages Act, 1991

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.

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 Transferee on the date of the transfer of the business, I do not find the complaint against the Respondent to be well founded.

CA-00032023-004 Complaint under Section 30 and 31 of the Maternity Protection Act 1994                                                                     

Section 32 of the Maternity Protection Act 1994 requires I make a decision in relation to contravention of entitlements under the 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 Transferee on the date of the transfer of the business, I do not find the complaint against the Respondent to be well founded.

Dated: 8th January 2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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