LCR22335

1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00025156 & CA-00031812-002


BACKGROUND:

2.The Claimant appealed Adjudication Officer's Decision No ADJ-00025156 & CA-00031812-002to the Labour Court in accordance with Section 45(a) of the Industrial Relations Act, 1946. A Labour Court hearing took place in a virtual setting on 21 December, 2020. The following is the Courts' decision:-

DECISION:

The Worker started employment in 1997. On the 21^stOctober 2019 a Transfer of Undertakings took place. The Workers complaint is that he was not offered a minimum of 24 hours per week in the six months prior to the Transfer taking place in breach of Employment Regulation Order SI No 231 of 2017( ERO).

Union’s Position

The Union on behalf of the Workers submitted that prior to the Transfer the Worker had not been offered his entitlements under the ERO. While this occurred prior to the transfer the transferee was liable for any shortcomings once the transfer had occurred. In support of that position the Union citiedJ Donoghue Beverages Ltd V MurphyTUD 185. The Worker submitted extracts from texts messages for the relevant period showing the hours he was offered. The text messages indicated that for the periods April May and June he was assigned the correct hours, there were no messages for July, August up to late September when there was a message stating welcome back. It was the Worker’s evidence to the Court that he was offered no work during that period despite making contact with the Employer on numerous occasions by email . Unfortunately, the Worker did not have with him copies of those emails.

Employers Submission

It was the Employer’s submission that they did not have access to the records for the period and that the claim should have been taken against the previous Employer. It was their view that the Worker was being opportunistic in taking the claim at this point. They did not dispute that the position as set out in theDonoghuecase was an accurate reflection of the transposition of the Directive into Irish Law. It was their submission that the Worker should have been able to produce a P60 for 2019 showing his earnings for the year.

Discussion and Decision

The Courts notes that the position in relation to transfer of undertakings is clearly set out inDonoghueand that to-date that position has not been challenged. Applying that to the circumstances of this case, any liability arising falls on the current Employer. The Employer in this case has been unable to dispute the evidence given by the Worker that he was not offered work for a number of weeks in breach of the ERO. The Court having reviewed the documentation submitted finds that the shortfall covers a nine- week period when the Worker was not provided with any work giving a monetary loss of €11.35 (hourly rate) x24 hours (minimum entitlement) x9 weeks giving a total of €2451.50.

The Court finds the Worker is due €2,451.50 which falls to be paid by his current Employer.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
05 January 2021	Deputy Chairman