ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00026322

Parties:

Complaint:

Date of Adjudication Hearing:  28/02/2020

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This Complaint refers to an allegation of unfair dismissal by the Respondent following the alleged transfer of a cleaning services business by her former employer to the Respondent. The Complainant maintains her role was transferred in accordance with the Protection of Employees on Transfer of Undertakings Regulations 2003 but that the Respondent refused to acknowledge the transfer and unfairly dismissed the Complainant along with other employees.

Summary of Complainant’s Case:

The Complainant commenced employment as a cleaner on 10th September 2013 where her job had been transferred to another employer in 2015. The Complainant worked as a cleaner at a client site for 14 hours per week. She maintained her job was terminated on 31st December 2019 by the Respondent.

The Complainant submitted that on 13th December 2019 her former employer advised her in writing that it had lost the cleaning contract at the site and it was their opinion that her employment was subject to a transfer to the Respondent under TUPE regulations. In this correspondence the Complainant was advised by her former employer that it intended to contact the Respondent to correctly observe your terms and conditions of employment.  The Complainant further maintained that the company at the site has always applied this arrangement when a change in cleaning contractors occurred.

The Complainant further maintained that her former employer advised her the services were paid up until 20th December 2019 and that she would be paid two weeks holiday from that date.  The Complainant submitted that when she returned to work on 2nd January 2020 the Respondent was now providing the cleaning service at the site and there was no work for her. She therefore maintained that along with other colleagues she was unfairly dismissed by the Respondent as her employment should have been transferred.

The Complainant submitted that she was out of work for four weeks and was successful in gaining alternative employment of 16 hours per week after that.  However, the work now involved travel of 40km per day compared to 3 km to her former work.  Her loss due to her dismissal therefore amounted to four weeks’ pay, and an ongoing extra travel costs to her new place of work.

Summary of Respondent’s Case:

The Respondent submitted that in February 2019 it understood the contracting client was dissatisfied with the services being provided by the Complainant’s former employer and that the former employer gave early notice of termination of the contract on 27th February 2019 stating the contract would terminate on 31st December 2019.  The Respondent provided written confirmation from the client site of this arrangement, and that the client site was formally notified of the termination of the contract on 11th November 2019. The cleaning contract with the client terminated on 31st December 2019.

The client site therefore tendered for a new company to provide the cleaning services and the Respondent was successful in being awarded a new contract.

The Respondent submitted it received a text message on 12th December 2019 from the Complainant’s former employer stating that a TUPE applied. The Respondent replied by email on 13th December 2019 stating that no such transfer applied. The Respondent maintained this situation was confirmed in an email by the client site on 14th December 2019 which advised the staff were not being transferred.

The Respondent contended that a TUPE did not apply in this instance as the contract with the client had been terminated by the Complainant’s former employer and where the former employer continued to operate services in the area and throughout Ireland. The Respondent further submitted that the former employer had other client sites in the area and could have redeployed the Complainant to those sites.

The Respondent advised that it advertised for the new positions and the Complainant applied for the job, so on that basis she would have been aware that a TUPE did not apply to the situation. The Complainant was not successful in her application for the new job. 

The Respondent also made a legal submission that the factors to determine if a transfer of undertaking has taken place are established by the ECJ in Jozef Maria Antonius Spijkers v Gebroeders Benedik Abattoir CV and Alfred Benedik en Zonen BV C-24/85. The Respondent argued that as the new contract was a second generation transfer and where the principle usually no longer requires that the new service provider takes over the employees from its predecessor.  The Respondent also referred to Ayse Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice [1997] where the CJEU determined that the mere loss of a contract by the Complainant’s former employer does not amount to a transfer.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

Based on the evidence provided to the hearing the Complainant’s employment was terminated on 31st December 2019 after having been advised by her then employer that it had lost control at a client site the Complainant was working in. The Complainant was providing contract cleaning services. The Complainant had been provided written notification of this decision on 13th December 2019, was provided with two weeks leave, and when she attempted to return to work on 2ndJanuary 2020 she was advised by the Respondent that she was not an employee of the Respondent, who maintained no transfer had taken place.

The situation as to whether the Complainant was unfairly dismissed by the Respondent therefore depends on whether a TUPE situation arose in this case, and whether the Respondent subsequently failed to meet its obligations under the TUPE regulations (SI 131/2003) (the Regulations).

Regulation 3 of the Regulations states

• (1) 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.
• (2) 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.

The question of whether there is a Transfer of Undertaking must be answered based on criterion including whether the undertaking has retained its identity after a change of entrepreneur.  With reference to the Jozef Maria Antonius Spijkers v Gebroeders Benedik Abattoir CV and Alfre Benedik en Zonen BV C-24/8, retention of identity is shown by making an overall assessment whereby a number of factors play a role, such as the type of the undertaking, whether tangible and/or intangible assets are transferred, whether a (substantial) part of the employees are transferred, whether or not customers are transferred, and the degree of similarity between the activities carried out before and after the transfer.

With reference to Ayse Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice [1977]the ECJ determined that the mere loss of a contract does not amount to a transfer, and just because the activities carried out by the new contractor were similar to those carried out by the old contractor it does not support the conclusion that an economic entity had been transferred. The ECJ determined that other factors that must also be considered include whether a transfer of significant tangible or intangible assets or the taking over of a major part of the workforce in terms of number and skills are also key factors to be considered.

In the within case the evidence presented by the Respondent supports that the Complainant’s former employer had decided on 27th February 2019 to terminate the contract early with the client and provided formal notice to the client on 11th November 2019 that the date of termination would be 31st December 2019.  The client sought an alternative supplier through a tendering process and selected the Respondent. The Complainant was aware of this situation as she had applied for a position with the Respondent but was unsuccessful.  It appears the Complainant had an expectation that her job would be transferred as her former employer advised her of this in a letter of 13th December 2019, and where she had previous experience of being TUPE’d.

In reviewing the evidence, I am satisfied there was no transfer of significant assets or equipment, nor indeed did the Respondent take over a major part of the Complaint’s former employer’s workforce.  I therefore find that a transfer of undertakings as defined under Regulation 3 of the Regulations, and as determined by the case law referred to above, did not apply in this situation. I find that the Complainant’s former employer simply decided to terminate the contract of the services with the client and under these circumstances the employment obligations remained with the Complaint’s former employer who continued to provide cleaning services to other clients.  It is noted that the Complainant’s former employer continues to advertise its business as a leading provider of cleaning and support services in the UK and Ireland with experience in retail, office and distribution centres.

Under these circumstances I find that the Complaint’s former employer and not the Respondent had an obligation towards the Complainant’s employment, and as there was no transfer of the business.  Simply the Complainant’s former employer decided to terminate the contract with the client. 

Based on the evidence provided at the hearing, although there was a change of service providers, I find that in this instance that the Respondent did not incur obligations under the Regulations towards the Complainant. Under these circumstances I do not find that the Respondent unfairly dismissed the Complainant.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

As I have found the Respondent did not have an employment obligation towards the Complainant, I decide the complaint against the Respondent is not well founded and dismiss the complaint against the Respondent.

Dated:   29th March 2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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