ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030136

Parties:

	Complainant	Respondent
Parties	Elaine O'Shaughnessy	Cosmopolitan Cleaning Contractors Limited

Representatives

Emer Murphy Lavelle Solicitors

N/A

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
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-00040654-001	28/10/2020
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-00040654-002	28/10/2020
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-00040654-003	28/10/2020
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-00040654-004	28/10/2020
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-00040654-005	28/10/2020
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-00040654-006	28/10/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00040654-007	28/10/2020

Date of Adjudication Hearing: 22/09/2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

As this case involved allegations that the Complainant’s employment should have been transferred from Centric Health Primary Care Limited, the Respondent in ADJ 30132, the two cases were heard together and both Respondents attended the hearing.

I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that decisions issuing from the WRC will disclose the parties’ identities.

The Complainant as well as two witnesses on behalf of the Respondent gave relevant sworn evidence at the hearing.

Background:

The Complainant commenced employment as a cleaner with the Respondent in ADJ 30132 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 this case, when a decision to outsource her role was made.

Summary of Complainant’s Case:

The Complainant stated that her employment transferred to the Respondent in ADJ 30132 in June 2012 by way of a transfer of undertaking having initially commenced in the role on 1 January 2009.

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 the Respondent.

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

Summary of Respondent’s Case:

The Respondent stated that the Complainant was not eligible for transfer because they transferred no other staff from the Respondent in ADJ 30132 and use all of their own equipment.

Findings and Conclusions:

CA-00040654-001 - 006:

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 in ADJ 30132 to outsource the cleaning of its premises in Swords to the Respondent in this case 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 in ADJ 30132 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 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 this matter 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.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

CA-00040654– 001: As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00040654-002: As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00040654-003: As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00040654-004: As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00040654-005: As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00040654-006: As I have found that there was no transfer of undertakings in this case, this complaint is not well founded.

CA-00040654-007: As I have found that there was no transfer and that the Complainant was therefore not employed by the Respondent, I do not have jurisdiction to hear this complaint.

Dated: 12th October 2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Key Words:

No Transfer of undertakings