FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HORAN ECO SERVICES LIMITED (REPRESENTED BART O'DONNELL B.L., INSTRUCTED BY O'SHEA LEGAL) - AND - MS VAIDA SMIGELSKIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00017014 CA-00021948-003,004,005,006. The Complainant is a part-time cleaner. She was employed by Cagney Maintenance Services Limited from 23 July 2015. However, her employment transferred on 1 April 2018 to Horan Eco Services Limited (‘the Respondent’) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the 2003 Regulations’). During the period comprehended by the within complaints, the Complainant worked twenty-five hours per week and was remunerated at a rate of €10.40 per hour. ADJ-00017014/CA-00021948-001 The Complainant submits that she did not receive a written statement of terms and conditions of employment from her previous employer, Cagney Maintenance Services Limited. She further submits that liability in respect of that breach of the transferor’s failure to comply with section 3 of the Terms of Employment (Information) Act 1994 (‘the 1994 Act’) passed to the Respondent on the date the Complainant’s employment transferred to it by operation of the 2003 Regulations. The Adjudication Officer at first instance held that this element of the Complainant’s case was well-founded and awarded her compensation of €200.00. The Complainant is seeking an increase in that award to the maximum available under the 1994 Act i.e. four weeks’ pay. The Respondent submits that it was notified of the Complainant’s terms and conditions in or around the date of the transfer of undertakings and restated those terms in writing to the Complainant. It further submits that it held a meeting with the Complainant on 29 May 2018 to review her terms of employment. The Complainant made a request to have some elements of the statement modified. The request was accepted by the Respondent and both parties then signed the written statement. In its written submission to the Court, the Respondent submits:
It is well established that a Complainant does not need to show detriment to be awarded compensation pursuant to section 3 of the 1994 Act for any alleged breach thereof. (See paragraph 45 of White J’s judgment inPetraitis v Philmic Limited T/A Premier Linen Services[2017] IEHC 831.) The Court, therefore, rejects that part of the Respondent’s submission quoted above. The Court, however, accepts the Respondent’s submission that it acted reasonably expeditiously to ensure that the Complainant was furnished with an accurate written statement of her terms and conditions of employment subsequent to the transfer of undertakings that took place on 1 April 2018 whereby the Complainant came into its employment. Nevertheless, the fact remains that the Complainant’s entitlement to a statement was not fulfilled by her previous employer and liability in that regard passed to the Respondent on the date of the transfer. The Respondent, on the basis of appropriate due diligence carried out prior to the transfer, ought to have been aware of the previous employer’s omission vis-�-vis the Complainant. Having regard to the foregoing, the Court finds this complaint to be well-founded and awards the Complainant four weeks’ pay by way of compensation. ADJ-00017014/CA-00021948-002 and CA-00021948-003 In these complaints, the Complainant submits that the statement of terms and conditions issued to her by the Respondent following the transfer of her employment breached section 5 of the 1994 Act in a number of respects. Firstly, she submits that the Respondent’s name was incorrectly stated as “Eco Group Services” and elsewhere as “Eco Group Services Limited”; the Respondent’s registered name is “Horan Eco Services Limited”. The Respondent submits that “Eco Group Services” is a registered business name of “Horan Eco Services Limited”. It further submits that it sent a memo to all employees in February 2019 in which it clarified the issue of its correct legal name and its registered address. The Complainant submits that the statement she received from the Respondent was deficient in a number of other respects also: it did not advise of the relevant pay reference period for the purposes of the National Minimum Wage Act 2000; it incorrectly stated the annual leave year to run from 1 January to 31 December; there was no reference to the availability of a PRSA; the provisions of sections 21 and 30 of the Employment Equality Act 1998 were not replicated on the statement; and there was no reference to SI No. 208 of 2012 (Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012. The Respondent denies each of the above elements of the complaint under section 5seriatim. It submits that it has complied with its obligation to inform the Complainant of her right to request a statement in respect of a pay reference period under the National Minimum Wage Act 2000; it further submits that that an employer is not precluded by virtue of the Organisation of Working Time Act 1997 from applying an annual leave year other than the statutory annual leave year for the purposes of its internal administration; it submits that the Respondent does offer access to a PRSA scheme; and finally it submits that it had in place, at all material times, an Employee Handbook to which the Complainant had access and which Handbook contained a comprehensive Dignity at Work Policy and an Equal Opportunities Policy that fulfil the Respondent’s obligations with regards to sections 21 and 30 of the Employment Equality Act 1998 and SI No. 208 of 2012. Discussion and Decision If established, taken at their height, the issues raised by the Complainant constitute no more than technical breaches of the 1994 Act. The Court has set out its approach to such technical breaches in some detail in previous determinations under the Act. (See, for example,Patrick Hall v Irish WaterTED161 andComponent Distributors (CD Ireland) Limited v BurnsTED1812 where the Court applied the ‘de minimis rule’ and found the contraventions complained of to be ‘without substance’ and ‘of no practical consequence’ for the complainant/appellant.) Notwithstanding the foregoing, the Court finds that the complaints under section 5 of the 1994 Act are not well-founded. Organisation of Working Time Act 1997 - CA-00021948-05 and CA-00021948-06 The Complainant submits that she was due payment for twenty-six hours’ annual leave for the annual leave year ending 31 March 2018. She further submits that she was not paid in advance for her annual in that same annual leave year. The Respondent submits that it did pay the Complainant in full for the annual leave in question. It accepts that the payment in question was delayed pending an inquiry on its part to ensure that the Complainant had not already been paid for the leave by the transferor. The reason for the delay, it submits, was explained to the Complainant by letter dated 2 October 2018. It is the Respondent’s submission that the Complainant was not paid in advance for her annual leave because she had failed to follow the correct procedure to request annual leave. Discussion and Decision The Court finds that the Respondent has provided a reasonable and cogent explanation for the issues raised under this heading by the Complainant with respect to payment for the annual leave in question. It determines that no compensation is payable in all the circumstances. European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 - CA-00021948-07; CA-00021948-08; CA-00021948-09 & CA-00021948-10. Industrial Relations Act 1946-CA-00021948-11; CA-00021948-12; CA-00021948-13; CA-00021948-14; CA-00021948-15; CA-00021948-16; CA-00021948-17 The Complainant submits she was not properly advised of the identity of the transferee/the Respondent prior to the transfer having been informed in a letter from the transferor dated 11 April 2018 that the Respondent’s name was “EcoGroup”. The Respondent submits that this is essentially a replication of an element of the complaint brought by the Complainant under the 1994 Act. It accepts fully that an error was made by the transferor but has never sought to evade its responsibilities as an employer on the basis of that error and, in fact – as previously noted by the Court – addressed and corrected the error by memo circulated to all staff in February 2019 (exhibited). The Complaint further submits that the 2013 Regulations were breached in so far as she was not informed by the Respondent of the “issues which must be advised to [her]” under the Employment Regulation Order for the Contract Cleaning Industry, including the name of a trade union for negotiation and representation purposes. The Respondent submits that the Complainant was advised of her rights under the ERO and that the relevant entitlements thereunder are reflected in her written contract of employment. It was the also the case, according to the Respondent - and not denied by the Complainant – that a copy of the ERO was available at all material times at the site on which the Complainant worked. The Respondent further submits that the Complainant was advised in writing of her right to be represented by a union of her choice in the context of grievance and disciplinary matters but that it does not recognise trade unions for collective bargaining purposes. Discussion and Decision The Court finds that the transferor’s technical error whereby it identified the transferee by a registered business name rather than its registered legal name does not merit the imposition of an award of compensation on the transferee under the 2013 Regulations in circumstances where the Respondent transferee has taken all reasonable steps to clarify the factual and legal situation by means of a written memo to all staff. The Court determines that the Complainant has failed to stand up any element of her complaints alleging that the Respondent has not complied with its obligations to her under the ERO and/or the Industrial Relations Act 1946. These complaints are also, therefore, deemed not well-founded. Employment Equality 1998 CA-00021948-017 The Complainant also submits that her command of the English language is poor and she doesn’t read English and in those circumstances the Respondent was obliged to provide her with a copy of all relevant documentation in her native language. The Respondent submits that, following the transfer, it met individually with each of the employees who transferred, including with the Complainant on 29 May 2018. The Complainant was accompanied at that meeting – the purpose of which was to clarify her terms and conditions of employment – by her daughter who is fluent in Lithuanian and English and who acted as translator. While a copy of the Respondent’s Employee Handbook in English was available at all times to the Complainant on site, the Respondent submits that the Complainant had been advised by it that she could seek clarification of any aspect of it at any time and that a translation of any part of it, as appropriate, would be made available to her. Discussion and Decision The Court does not accept that in all the circumstances the Respondent did not make reasonable efforts to compensate for the Complainant’s inability to read English. This complaint is not, therefore, well-founded. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
