Complainant

Respondent

Parties

Thomas  Lavelle

Securitas Security Services Ireland

Representatives

  Self

Conor O'Gorman IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043958-001

08/05/2021

The complaint is concerned with a claim that the Respondent paid all outstanding holiday entitlements to the Complainant at the point where his employment ended with the Respondent and transferred to another employer under a transfer of undertakings (TUPE). Documents were provided by the parties in advance of the hearing. Evidence under affirmation was provided by the Complainant and on behalf of the Respondent (Witness A).

Preliminary Issue

A preliminary issue was raised on behalf of the Respondent to support the position as set out by IBEC in an email of 4 October 2021:

“Please note that the Claimant is no longer an employee of the Respondent. The Claimant transferred to Synergy Security in April of this year under S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. When the Claimant transferred the transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer to the transferee. The Claimant has chosen to bring this claim against the transferee (sic), the correct respondent is the transferor (Synergy Security) (sic). We ask that the matter be dismissed as it is against the wrong respondent.”

Noting the position of the Respondent the hearing proceeded to fully hear the evidence in the case as the email from IBEC gave no indication of what action had been taken by the transferor Securitas Security Services in respect of holiday pay or the reasoning for the related decisions. This preliminary issue is addressed in the findings section of this decision.

 The parties are named in the decision and the generic terms of Complainant and Respondent are used in the remainder of the text.

The Complainant commenced employment on 13 July 2013. He gave as his weekly gross pay at the time of the transfer of undertakings €520 gross and €430 net working 44 hours per week. On 1 April 2021 the Securitas contract on a site in Mayo ended and Synergy Security took it over. On his final payslip from Securitas there appeared an unexpected section with 110 hrs holidays and pay for same. He said he thought there was a mistake and tried to contact Securitas to no avail. His supervisor eventually got in touch them and was told they were entitled to do this. He emailed HR in Securitas in April but received no reply and he was told that his supervisor’s calls were not being answered There was no notice given, there was no account taken of personal circumstances. His position is that he went to work with lots of leave in the morning and the next day had no leave remaining. He referenced health and safety and rest and there was a total disregard for staff. At the time when this occurred, he had two weeks holidays booked in August and he was concerned he would not have enough holidays accrued with his new employer to cover the period of his planned leave. This leave was very important to him and his wife for personal and family reasons. He provided details of holiday bookings made for August of 2021. Having received the email of 4 October from IBEC he provided an email dated 8 February 2021 issued to those employed on the site by the Respondent informing them that the contract would be terminating on 31 March 2021, further advising them that they were covered by TUPE, indicating that HR would be sending an official letter of communication in respect of this in the coming days and promising to work with all parties to ensure a smooth and seamless transition. There were no meetings on the site arranged and the person who wrote the email did not engage or communicate further with him or the other employees other than on 1 April when an email was sent to thank all of those who had worked on the site for the last number of years. As far as he is concerned holiday time is more important than money. He had been transferred before under TUPE and this had not happened.

Asked what he was seeking by way of redress, the Complainant said that he had been paid and that had gone but that he wanted was an acknowledgement that there had been poor communications, no consideration, no meetings, and a total disregard for the employees and that the action of the Respondent was illegal. He added that while there were Zoom meetings taking place at this time, none offered to the workers on site re this matter. It was possible to send emails to explain what occurred but there was no approach to them and no response to communications.

At the outset of the hearing IBEC on behalf of the Respondent repeated the position that the complaint was taken against the wrong respondent.

Subsequently, the witness on behalf of the Respondent gave evidence that the Complainant (and others) had accrued leave over a few years which had been carried forward from one employer to the other. Some of that leave was taken, but another amount remained. The total amount accrued including that leave accrued in the annual leave operated by the Respondent (January to December each year) amounted to 13 days or €1,176 gross. Ten of the accrued days stretched back to 2017. It was decided by the Respondent that the fairest thing to do was to pay people for all outstanding leave rather than transfer them to the transferee. There was a follow up to the email regarding the transfer and a manager did attend at the site and there was one meeting but most of the employees did not attend. In hindsight it was conceded that this was not carried out in a proper manner. The witness accepted that at the time of the transfer following the payment for accrued leave the Complainant would have had no holidays left to take by way of transfer to the transferee. In response to evidence of his own witness and the Complainant’s position regarding an acknowledgement and other matters, IBEC on behalf of the Respondent did say that the Complainant was well thought of, that the difficulties occurred during a most disruptive time because of Covid, that the Respondent was very sorry about the breakdown in communications and that he would like to apologise on behalf of the Respondent.

On the basis of the evidence of the witness on behalf of the Respondent-the preliminary procedural argument that the complaint is against the wrong Respondent is not accepted. From the evidence of the Respondent, it is clear that on termination of the employment relationship and immediately prior to the transfer to another employer, the Respondent unilaterally chose to remove all accrued entitlements to annual leave from the Complainant and to pay him for those accrued entitlements and it is whether the actions of the Respondent were lawful which is at issue in this case. Any case he could have taken against the transferee arising from the same set of facts is a separate matter.

It would appear the Respondent acted in this situation as though Section 23 of the Organisation of Working Time Act, which provides for payment for accrued annual leave on cessation of employment. This was not a correct option for the Respondent in circumstances where there as a transfer of undertakings and any outstanding liabilities due to the transferring employees travels with them to the transferee. It is in effect a contract of continuous employment. While accepting that the Respondent was trying to act fairly-it is not clear at whom this duty of fairness was directed. Section 20 of the Organisation of Working Time Act sets out the arrangements for the carry forward of leave in each leave year. While there is a generally understood term of use it or lose it-there is no provision in the 1997 Act which allows for pay in lieu of annual leave during the employment relationship. Neither is there provision under the S.I. 131 TUPE Regulations for the transferor to treat a transfer as a cessation of employment for the purposes of annual leave entitlements.

The same Respondent could have ensured that accrued leave was taken by the Complainant during the course of the employment relationship but three of the accrued days were only recently accrued i.e. in the leave year operated throughout the Security Industry or in the last quarter of the leave year ending 31st March 2020 if the Organisation of Working Time Act were applied. Being aware no later than early February of the pending loss of the contract, the Respondent could have ensured that most if not all accrued leave was taken if this was a concern. Consultation with the Complainant might have led to an agreed arrangement- whether or not that would have been entirely lawful-but the unilateral decision by the Respondent has no basis in law. The Complainant is correct that the purpose of annual leave is to meet ‘the need for the employee to reconcile work and any family responsibilities’ and ‘the opportunities for rest and recreation available to the employees.’ He is entitled to an acknowledgement by way of this decision that what occurred in his case was wrong and the way it was done by the Respondent especially the failure to engage with his queries was disrespectful.

Noting that the Complainant did obtain the necessary leave in August 2020 from the transferee, and that as he said, the money is gone, a modest award of compensation is decided in favour of the Complainant.

CA-00043958 Organisation of Working Time Act 1997.The Complaint brought by Thomas Lavelle against the Respondent – Securitas Security  Services Ireland - is well founded. The Respondent is to pay Thomas Lavelle €500 compensation in respect of his complaint.

Pay in lieu of annual leave-TUP