Complainant

Respondent

Parties

Bernard Meehan

Secureway at Risk Security Group Limited trading as SAR Security

Representatives

Tanya Maksimova, SIPTU

 Not represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042005-001

15/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042005-002

15/01/2021

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-00042005-003

15/01/2021

The complainant has been a security officer at the Rotunda Hospital for 18 years.  Since July 3rd 2020, he has been employed by SAR Security.  When he started in the job in 2004, he was employed by Federal Security.  The security contract at the hospital was subsequently awarded to Noonan Services and then to Brinks Security, and, in 2017, it went back to Noonan Services (now Bidvest Noonan). 

The complainant’s case is that his transfer from Bidvest Noonan to SAR in July 2020 is governed by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (Statutory Instrument 131/2003) (TUPE) and that his employer, the transferee, has failed to comply with the Regulations. 

The respondent did not provide a submission for the hearing and, at the opening, Mr Gannon said that he would not be making a case for the employer.  He said that he was simply looking after day to day issues because the senior managers who would normally attend the hearing were on holidays.

In the first instance, I intend to deal with the complaint under TUPE.  The transfer from Bidvest Noonan to SAR Security was effective on July 3rd 2020 and this complaint was submitted to the WRC on January 15th 2021, 12 days past the deadline of six months for submitting complaints to the WRC.  In her evidence at the hearing, Ms Maksimova said that she spent four months trying to engage with the respondent to resolve matters for the complainant.  By January 2021, no progress had been made and she decided that her only course of action was the submission of a formal complaint.  The respondent did not raise any issue concerning the extension of the deadline and in accordance with section 41(8) of the Workplace Relations Act 2015, I accept that the reason for the delay was due to reasonable cause and I intend to proceed with my enquiries.

In the summer of 2020, the complainant was working for Bidvest Noonan as a security officer at the Rotunda Hospital and he was aware that the security contract was up for tender.  This would be his fifth employer since he started working at the hospital in 2004.  On each occasion, he transferred from one operator to the next, with no change to his terms and conditions of employment.

Around 14 years ago, when he was employed by Noonan Services, the company commenced paying the complainant a fortnightly allowance of €42.12 for training new employees.  Copies of payslips from October 2017 and June 2020 were submitted at the hearing and these show that the complainant received a fortnightly allowance of €42.12, which is indicated on his payslip as a “site allowance.”  From the date that he commenced with SAR Security, this allowance has not been paid.

Before he was transferred to SAR, the complainant was paid overtime after working 39 hours in any week.  However, when he worked overtime in September 2020, he discovered that the overtime rate commenced after 48 hours.

Failure to Comply with the Regulations on Transfer of Undertakings

It is the union’s case that the respondent is in breach of Regulation 4(1) of the TUPE Regulations which provide that,

“The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

Ms Maksimova submitted that the respondent is also in breach of Regulation 8(1) and 8(3) regarding information and consultation with the 10 affected employees in relation to the transfer.  She said that she made several attempts to contact the operations managers in SAR Security, but she got no reply.  Eventually, in January 2021, she said that she had a telephone conversation with a manager who informed her that the company would not pay the fortnightly allowance of €42.12.

Case Law

Ms Maksimova referred to the Labour Court decision of February 2018 in J Donoghue Beverages Limited and Murphy[1] regarding the fact that the Irish state has not transposed into Irish law the optional provision in relation to joint and several liability to employees of the transferor and the transferee:

“…following a transfer of undertakings within the meaning of the Regulations, the liability for the transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer rest with the transferee.”

Ms Maksimova also asked me to have regard to the decision of the Court of Justice of the European Union in Von Colson and Karman v Land Nordrhein - Westfalen[2] where the Court held that where a right grounded in European law has been infringed, the redress must not only compensate for economic loss, but must be a deterrent against future infractions.

Mr Gannon made no response to the claims made by Ms Maksimova on behalf of the complainant.

The Legal Framework

Council Directive 2001/23/EC, often referred to as “the Acquired Rights Directive,” was transposed into Irish law in Statutory Instrument 131 of 2003 (SI 131/2003).  Article 3 of the opening preamble of the Directive makes its objective clear:

“It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.” 

 Article 3(1) of the Statutory Instrument provides that,  

“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.”

In Article 3(2), a “transfer” is defined as “the transfer of an economic entity which retains its identity.”  An “economic entity” is defined as,

“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 complainant claims that the respondent has breached Article 4(1), regarding the protection of his terms and conditions of employment:

“(1)     The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

The complainant also claims that the respondent has failed to inform and consult with his representative, as set out at Regulation 8(1) and (3):

“(1)  The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -

(a)    the date or proposed date of the transfer;

(b)    the reasons for the transfer;

(c)     the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

 and

(d)    any measures envisaged in relation to the employees.”

Sub-section 8(2) provides that the transferor has a responsibility to consult with the union representing employees and this is repeated in sub-section 8(3), with regard to the transferee: 

“(3)  The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.”

The Transfer of the Complainant from Bidvest Noonan to SAR Security

Since 2004, the complainant has worked as a security guard at the Rotunda Hospital and in July 2020, SAR Security became his fifth employer.  Neither the transferor or the transferee communicated with the union representing their employees at the hospital and it appears that, without any formalities, the complainant and his nine colleagues transferred from Bidvest Noonan to SAR Security on July 3rd 2020.    

In 2014, when he was employed by Noonan Services, the complainant was awarded an increase in his wages of €42.12 per fortnight, in return for training and supervising new employees.  When he received his first payslip from SAR Security on July 17th 2020, he discovered that he was not paid the allowance and it has not been paid since.  However, the complainant continues to train new employees, as was apparent from a copy of an email dated August 19th 2020, which shows that an operations manager assigned him to train a new employee for two nights.

When he was employed by his previous employers, the complainant was paid overtime after 39 hours in any week.  When he worked overtime in September 2020, he was paid at the basic rate only until he had worked more than 48 hours.

The complainant transferred from Bidvest Noonan to SAR Security on July 3rd 2020.  His entitlement to continue in employment in the same job, in the same location has therefore been protected in accordance with the aim of the Directive, “to provide for the protection of employees in the event of a change of employer.”  As there was no argument regarding the transfer of his employment, and as he was not prevented from transferring, I must assume that the respondent has decided that TUPE applies to the circumstances in which the contract to provide security at the Rotunda Hospital was taken up by them in July 2020.  The issue for me to address is the respondent’s decision to adhere to just certain aspects of TUPE, for example, the complainant’s entitlement to transfer, but other provisions, such as communication, consultation and the preservation of his terms and conditions have been set aside. 

Findings

In a decision of the Employment Appeals Tribunal (EAT) in 2016, in Top Security Limited v Thomas Sadlier and Others[3], the chairman referred to the “diverse, varied, unwieldy and at times contradictory case law” that has emerged regarding transfers of undertakings.  As the respondent has accepted the entitlement of the complainant to transfer to its employment, I do not propose to unravel the case law to demonstrate that his change of employment is governed by TUPE.  I note that the main provisions of the Regulations are re-produced in the Employment Regulation Order for the Security Industry in Statutory Instrument 213 of 2017 (SI 213/2017), which indicates to me that there is a general acceptance in the Industry that the Regulations apply when a contract to provide a security service changes from one employer to another.

It is my view that, as an “organised grouping of resources,” the assignment of 10 security personnel to provide security at the Rotunda Hospital aligns with the definition of an economic entity at paragraph 3(2) of SI 131/2003:

‘“[E]conomic 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.’

It appears that, apart from the uniform worn by the security guards, this economic entity is unchanged from that which existed when it was managed by Bidvest Noonan, and its purpose continues to be to provide security at the hospital.  From the evidence of the complainant, there is no difference between the work he did when he was employed by Bidvest Noonan before July 2020 and the work he does since he joined SAR Security, including his responsibility for training new employees.

The Top Security case referred to above concerned the transfer in 2013, of a contract to provide security at the Chief State Solicitor’s Office (CSSO) from Manguard Plus to Top Security.  Before Manguard Plus, the five security guards assigned to the CSSO had been employed by Oscar Security.  The EAT decided that they were protected by TUPE.  The employer appealed to the High Court[4], where Mr Justice White concluded that the EAT was entitled to find that the activity carried out by the claimants amounted to a stable economic activity and that the decision that there was a transfer of an undertaking was “neither irrational nor perverse; nor was it based either on an identifiable error of law or on an unsustainable finding of fact.”

Conclusion

Taking my guidance from the EAT and the oversight of the High Court in the Top Security case, I find that the transfer of the complainant’s employment from Bidvest Noonan to SAR Security on July 3rd 2020 is protected by the provisions of the TUPE Regulations as they are set out in Irish law in SI 131/2003.  I find that the respondent has failed to comply with Regulation 4(1) which provides that the complainant’s terms and conditions of employment transferred from Bidvest Noonan to SAR Security on the date of the transfer.  I find also that the respondent has failed to comply with Regulation 8(1) and (3) in the manner in which no information was provided to the complainant’s representative in advance of the transfer. 

I have concluded that this complaint is well-founded and I decide therefore that the respondent is to pay the complainant compensation of €2,500 equivalent to approximately four weeks’ pay, inclusive of the disputed training allowance and with some consideration for his entitlement to a premium for working on Sundays and an unsocial hours payment.

The complainant’s hourly rate of pay is €12.66.  He receives a Sunday supplement of €44.72 for each Sunday that he works.  Until his transfer to SAR Security, he was also paid a fortnightly allowance of €42.12, which is indicated on his payslip as a “site allowance.”

It is the complainant’s case that, in accordance with Regulation 4 of the TUPE Regulations, he is entitled to the continuation of this allowance from the date of his transfer to SAR Security on July 3rd 2020.

The respondent’s representative made no submission in response to this complaint.

Section 1 of the Payment of Wages Act 1991 defines wages as, “…any sums payable to the employee by the employer in connection with his employment.”  I have concluded that the terms and conditions of employment that applied to the complainant when he was employed by Bidvest Noonan transferred to SAR Security on July 3rd 2020, in accordance with Regulation 4 of the Transfer of Undertakings Regulations. 

I note also that clause 21 of the Employment Regulation Order (ERO) for the Security Industry (Statutory Instrument 231 of 2017) addresses the circumstances where employees are paid in excess of the ERO rates:

“Excluding rates of pay (otherwise known as core pay), this Employment Regulation Order does not affect in any way already existing agreements (whose terms are equal or better), be they local, national, official, or in company.”

Taking account of the effect of TUPE and the provisions national law, I find that the failure of SAR Security to pay the complainant the fortnightly allowance of €42.12 which he has received since 2014 when he was employed by Noonan Services is a deduction in his wages.  I find that this deduction is not governed by the provisions of section 5 of the Payment of Wages Act and is therefore illegal.

I have decided that this complaint is well-founded.  As it was submitted to the WRC on January 15th 2021, the timeframe for which I can consider a breach of the Payment of Wages Act 1991 is the six months from July 16th 2020 until January 15th 2021.  I decide therefore, that the respondent is to pay the complainant compensation of €465.00, equivalent to an approximation of the net value of the allowance for 26 weeks (€547.56).

This is a complaint regarding the calculation of overtime pay.  When he was employed by Bidvest Noonan, the complainant was paid overtime after working 39 hours in any week.  He transferred to SAR Security on July 3rd 2020 and he worked overtime in the last fortnight of September.  When he received his wages on October 2nd 2020, he noticed a shortfall in respect of his overtime earnings.  When he queried the shortfall, he was informed that SAR Security pays overtime after 48 hours.  He has since declined to work overtime, despite several requests to do so.

A copy of the complainant’s payslip of October 2nd 2020 was submitted in evidence.  The payslip shows that, in the last week of September 2020, the complainant worked 52 hours.  He was paid at the basic rate of €12.66 for 48 hours and for four hours at time plus a half, €18.99.  If he had worked the same schedule of hours with his previous employer, he would have been paid for 15 hours at time and a half, resulting in additional wages of €63.30.   

The respondent’s representative made no submission in response to this complaint.

I have previously concluded that the terms and conditions of employment that applied to the complainant when he was employed by Bidvest Noonan transferred to SAR Security on July 3rd 2020.  One of the complainant’s conditions of employment that transferred is the payment of overtime after 39 hours.  The respondent’s decision in October 2020 to pay the complainant the overtime rate from the 49th hour rather than the 40th hour of work resulted in a deduction in his wages of €63.30.  I find that this deduction is not governed by the provisions of section 5 of the Payment of Wages Act and is therefore illegal.

I decide that this complaint is well founded and I direct the respondent to pay the complainant €55.00, which I estimate to be the net value of his loss (€63.30).

CA-00042005-003:  €2,500.00            Compensation for breach of the TUPE Regulations

CA-00042005-001:  €465.00               Compensation for deduction of the fortnightly allowance

CA-00042005-003:  €55.00                 Compensation for failure to pay overtime after 39 hours

Total award:            €3,020.00

Transfer of Undertakings, allowance, overtime