Complainant

Respondent

Parties

Elaine  O'Shaughnessy

Centric Health Primary Care Limited

Representatives

Emer Murphy Lavelle Solicitors

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039740-001

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00039740-003

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039740-004

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00039740-005

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00039740-006

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00039740-007

10/09/2020

The Complainant commenced employment as a cleaner with the Respondent on 1 January 2009. She worked 15 hours per week and was paid a monthly salary of €782.10. She was advised that was being dismissed on the grounds of redundancy in July 2020 but asserts that her role should have transferred to Cosmopolitan Cleaning Contractors Limited, the Respondent in ADJ 30136.   

The Complainant stated that her employment transferred to the Respondent in June 2012 by way of a transfer of undertaking having initially commenced in the role on 1 January 2009.

On 30 March 2020 she informed the Respondent that she had been advised by her GP that she had to cocoon. She contacted the Respondent again in 20 June 2020 with a view to returning to work on 13 July 2020.

On 10 July 2020, she was informed via telephone that she was being dismissed on the grounds of redundancy and that her role was being outsourced to a cleaning agency. This decision was confirmed in a letter of 24 July 2020 but she was not provided with an explanation on how the decision was reached or presented with any alternatives considered by the Respondent.

The Complainant also asserts that her role should have transferred to the cleaning agency in accordance with the TUPE Regulations and that the Respondent should have consulted with her in this regard.

The Respondent stated that, as a clinical business/healthcare provider, they need to ensure that the clinics they operate are kept up to the highest standards of cleanliness to protect and ensure the safety of colleagues and patients. Accordingly, a decision was made when the pandemic struck to exit all stand-alone cleaners in their different practices and outsource the cleaning function to an external cleaning agency.  This decision had been discussed prior to COVID 19 and was already established in a number of the Respondent’s practices prior to 2020.

The Respondent stated that they notified the Complainant of the decision to progress with her redundancy on the 10 July 2020 having considered all options to continue her employment including possible alternative work. Given the decision to exit all stand-alone cleaners across the business however, there was no other suitable alternative work available for her.

The Complainant was given notice of the company’s decision to make her role redundant on 10 July 2020 via telephone. Furthermore she was issued with an official Redundancy Notification Letter on 24 July 2020 which detailed all relevant information in relation to her redundancy including a notice period of 6 weeks’ as per her length of service. She was advised that her employment with the company would end on the 27 August 2020 as stated in her official notice letter. The redundancy payment was made on 25 September 2020 as part of her last payment from the company.

The Respondent also highlighted that the decision to exit all stand-alone cleaners and outsource the service to an external contractor resulted in the operation of the cleaning services within the practices being completed by the contractor who used their own equipment and materials. On this basis, it was asserted that the Complainant’s employment was not eligible for TUPE, resulting in termination of her employment under redundancy.

CA-00039740-001:

Given my finding that there was no transfer of undertaking, I must examine if the Complainant was unfairly dismissed by the Respondent in the instant case as she alleges. In reaching my decision on this complaint, I have reviewed the relevant provisions of Section 6 of the Unfair Dismissals Acts 1977 to 2015.

Specifically, Section 6(1) provides that a dismissal is unfair “unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”. It is the Respondent’s case that the Complainant’s position was redundant due to a downturn in revenue as a result of the pandemic and that she was fairly dismissed on these grounds. The definition of redundancy, as set out in Section 7 of the Redundancy Payments Acts is the starting point for a consideration of the Respondent’s position and Section 7 (2) sets out five definitions of redundancy:

a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The Respondent’s position is that the redundancy of the Complainant’s position was required due to a decision to outsource the cleaning function. Accordingly, I do not consider that there was a breach of Section 6 (1) and that a redundancy situation arose in relation to the specific role in which the Complainant was engaged.

I must also however have regard to the provisions of Section 6(7) of the Act (as amended) in relevant part as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

and must consider whether, notwithstanding the fact of the redundancy of the Complainant’s position, the conduct of the Respondent in relation to the dismissal was reasonable. In making a decision on this, I have examined firstly the process surrounding the notification of redundancy and whether or not there was a meaningful consultation process.

According to the Complainant’s direct evidence, she was telephoned by the Respondent on 10 July 2020 and informed that her position was being made redundant and that her role was being outsourced to Cosmopolitan Cleaning Contractors Limited, the Respondent in ADJ 30136. This was confirmed in writing on 24 July and the Complainant’s employment ended on 27 August 2020. 

There is a significant body of case law to support the contention that an employee is unfairly dismissed in circumstances where either there was no consultation or it was deemed to be inadequate and where alternative options were not examined as was the case in the instant matter. Specifically, in Dower vs Waterford Star UD 151/2010, the Employment Appeals Tribunal held that any reasonable employer would consult with employees whose employment is potentially affected by redundancy and would invite them to make representations so that alternatives to redundancy could be considered. On the same issue of consultation, in the matter of O’Kelly v Exil Limited UD 1086/2017, the employer was found not to have acted reasonably and fairly as there were no meetings with the Complainant prior to redundancy and no discussion with the employee about suitability for alternative positions.

As well as the failure to adequately consult and engage with the Complainant, I also note that there was no avenue of appeal provided to her either when she was telephoned on 10 July 2020 or in the correspondence issued by the HR department on 24 July 2020. Such a process could have given her the opportunity to defend her future employment and highlight her willingness to work in alternative roles and locations. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, it would appear that the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner.

Having considered all matters put before me, I find that the Complainant was unfairly dismissed in light of the Respondent’s breaches of 6 (7) of the Unfair Dismissals Acts 1977 -2015.

CA-00039740-003, 005, 006 and 007:

THE LAW:

Regulation 3 of the Transfer Regulations provides:

(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. (3) These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.

FINDINGS:

In the instant case, a decision was made by the Respondent to outsource the cleaning of its premises in Swords to the Respondent in ADJ 30136 as a result of which the Complainant was made redundant and the question for me to address is whether or not this represented a transfer of undertaking according to the TUPE Regulations.

It is clear from the legislation set out above that, for a transfer to occur, I must establish firstly establish if an economic entity exists and if there must be a transfer of an economic entity in this case.

The issues surrounding what constitutes an entity have been considered a number of times by the Court of Justice of the European Union (CJEU). In the case of Suzen v Zehnacker Gebaudereinigung Krankenhausservice(C-13/95) at paragraph 10 the CJEU stated:

• “the aim of the directive is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive criterion for establishing the existence of a transfer within the meaning of the directive is whether the entity in question retains its identity as indicated inter alia by the fact that its operation is actually continued or resumed (Case 24/85 Spijkers[1986] ECR 1119, paragraphs 11 and 12)”.

The Court at paragraph 13 went on to say

• “For the directive to be applicable, however, the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract ( Case C-48/94 Rygaard[1995] ECR I-2745 paragraph 20). The term entity thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective.”

In joined cases Francisca Sanchez Hidalgo and others C-173/96 and C-247/96 the CJEU referencing ‘entity’ as set out in the Suzen case noted at paragraph 26 that an organised grouping of wage earners could in some circumstances amount to an economic entity. However, at paragraph 27 the Court went on to say:

• “The presence of a sufficiently structured, and autonomous entity within the under-taking awarded the contract is, in principle, not affected by the circumstance, which occurs quite frequently, that the undertaking is subject to observance of precise obligations imposed on it by the contract -awarding body. Although the influence which the contract-awarding body has on the service provided by the undertaking concerned may be extensive, the service-providing undertaking nevertheless normally retains a certain degree of freedom ,albeit reduced in organising and performing the service in question, without its task being capable of being interpreted as simply one of making personnel available to the contract-awarding body.

At paragraph 30 of that judgment the CJEU stated:

“the mere fact that the service provided by the old and new undertaking providing a contracted-out service or the old and new contract holder is similar does not justify the conclusion that there has been a transfer of an economic entity between the successor undertakings. Such an entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its management staff, the way in which the work is organised, its operating methods or indeed, where appropriate, the operational resources available to it (Suzen)”.

I note in the first instance that the Complainant was the only cleaner employed by the Respondent at its premises in Swords and as outlined in the Suzen case above “the transfer must relate to a stable economic entity and that “The term entity …. refers to an organised grouping of persons”

While I also note that the Complainant’s representative opened the Employment Appeals Tribunal decision in the case of Power and Others vs St Paul’s Nursing Home and T &M Cleaning (UD 611/97 – 614/97), the facts in that case differed significantly from those in the instant case. Specifically, I note that in the former case, there were four complainants. In addition, the tangible assets which belonged to the transferor were transferred to the transferee and consideration was given by the transferee’s management to hiring the Complainants. By contrast in the instant case, it was not disputed that the Respondent in ADJ 30136 brought in all of its own equipment and did not give any consideration to hiring the Complainant.

As I have found that no entity capable of being transferred existed, no transfer as defined by the Regulations occurred. In the event that an entity was deemed to exist, which for the avoidance of doubt I do not accept, I also find that there was no transfer of such an entity, given that there was no transfer of assets or people.

CA-00039740-001:

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate remedy.

Given that she has just secured alternative employment elsewhere and her preference for compensation as a remedy, I consider that this is the appropriate form of redress in this case.

In assessing the amount of compensation to award, Section 7 (1) (c) (i) of the Acts states that I may award “any financial loss attributable to the dismissal”.

I note firstly that the Complainant has been unemployed since the date of her termination with the Respondent on 27 August 2020 and that she did not work between the date of her termination and the date of the hearing although she did indicate that she has just secured a new role which she was due to start imminently.  Accordingly, I must confine the calculation of financial loss to the period from the end of August 2020 to the date of the hearing, namely 22 September 2021.

I note firstly that the Complainant failed to present any documentation to support her assertion that she was seeking alternative employment. Moreover, having probed the Complainant on her efforts to mitigate her loss, I note that in the period between her dismissal and the date of the hearing, by her own admission, she stated that applied for very few roles. I also note that she highlighted her unavailability for work for long periods due to her medical condition.  As has often been noted in case law, including in Sheehan v. Continental Administration Co. Ltd., UD 858/199, ‘time a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’. In that regard, the Complainant falls well short of what is required.

Taking all factors into account, I find that the Respondent should now pay a sum of €2,000 in compensation to the Complainant in respect of the unfair dismissal. For the avoidance of doubt, this amount is additional to her redundancy payment which she received.

CA-00039740-003:  As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00039740-004: As the Complainant has accepted that she received her redundancy payment, this complaint was withdrawn.

CA-00039740-005:  As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00039740-006:  As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00039740-007:  As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.