ADJ-00028956

Complainant

Respondent

Parties

Gheorghe Daniel  Marcu

Dangan Group

Representatives

Marius Marosan

Lisa Conroy Peninsula Group Limited

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-00036663-001

15/06/2020

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

CA-00036663-002

15/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036663-003

15/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00036663-004

15/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00036663-005

15/06/2020

The Complainant is a mobile Supervisor since 1st August 2016. He transferred to the Respondent on 1st May 2020.

The Complainant is employed by the Respondent which is a facility management company. His terms and conditions were not observed by the Respondent after the transfer. He was not paid for 32 hours worked and May and June bank holidays. He was penalised due to a health and safety complaint as he refused to do a task which was outside of his contract of employment. He had no training to do the task and had health and safety concerns. He was asked to perform duties outside his contract of employment which he refused to do on 14th April 2020. He made complaints in relation to the change to his duties on 15th and 16th April 2020 these were never investigated. On 17th April 2020 he was called into a meeting, when he refused to change his work pattern to nights. He was told the client requested he is laid off. He was threatened with the company not providing a form for him to receive the Pandemic Unemployment Payment.

He made another complaint on 20th April 2020, but the company never investigated any of his complaints. He was laid off and given no more hours, and the company hired others to work while keeping him at home.

The Claimant was transferred via transfer of undertakings to the Respondent on 14th April 2020 when the Respondent won a cleaning contract.

The Claimant terms and conditions of employment remained the same. The Respondent was given a copy of the work specification for cleaning staff. This requested staff to clean the under-racking area which essentially involves removing stock from under the shelves and returning same to a designated area. This prevented spillages and additional cleaning required when spillages would occur. The transferor did not enforce this aspect of the job specification as there was a certain reluctance on the part of staff to carry out this task.

The reason given as to the reluctance to carry out this task was based on the premise that the staff did not have adequate time. To overcome this, the Manager reviewed the workload of staff. At the time the staff cleaned each isle three times per shift so in an effort to maximise efficiency and in consultation with the staff the Manager reduced this to twice per shift to allow the staff adequate time to complete this task.

All staff with the exception of the Claimant agreed to carry out this task and all staff have since agreed that the cleaning process is a smoother running more efficient process as a result. When the Claimant refused to carry out this task citing it was not part of his duties, a meeting was arranged to discuss the matter and the options available to both on 17th April 2020.

The Claimant was not willing to carry out this task under any circumstances and so the Respondent posed the option to the Claimant to work the night shift. This was a reasonable alternative.

On 17th April 2020 the Claimant agreed to accept the night shift however reneged on this agreement the following day on the 18th April 2020 and said he had never worked nights. However, the Contract Manager that also transferred to the Respondent provided rosters which show the Claimant had worked the night shift.

The Respondent at the meeting on 17th April 2020 explained to the Claimant that he would normally be able to offer another location to transfer him to however with no other site due to Covid-19 it left the Respondent with no alternative.  Due to the pressure of the client and their request that the Claimant not be allowed back on site if failing to carry out the task required, the Respondent gave the Claimant notice that he would be temporarily laid off until something else became available.

A position has become available on the Industrial team which is open to the Claimant with the same terms and conditions with an hourly rate of €11p.h.

The Complainant has withdrawn  CA-00036663-002 and CA-00036663-005. I have heard and considered the parties evidence and submissions.

CA-00036663-001

The Complainant transferred to the Respondent on 14th April 2020. His contract job description provides that he performs under-racking for the client on site. This provision of his job description was not enforced by the transferor. The Complainant was one of the staff who voted against carrying this task out in 2018 .

S4 (1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, provides the rights and obligations of a contract of employment existing on the date of a transfer shall be transferred to the transferee.

Immediately following the transfer, the Complainant was required to change his duties to carry out under racking which task was not enforced prior to transfer on 14th April 2020. The Complainant refused to carry out under racking on two occasions, and complained of breaches of the transfer regulations. On 17th April 2020 the Complainant was laid off as he did not accept the offer of an alternative of nightshifts where he would not be required to carry out under racking. The Complainant submitted a number of written grievances claiming breach of the TUPE regulations which were never investigated.

All other staff agreed to the changes to their tasks following the transfer, and the Complainant refused to carry out the task. The Complainant was the only employee who was laid off by the Respondent.

The Contract of employment of the Complainant provides:

“It is a condition of your employment that you are prepared to accept changes to your duties, undertake duties of another person within the establishment where you work and are prepared to transfer to other establishments within a reasonable travelling distance from your home on a permanent or temporary basis.

It is accepted that the Complainant’s job description requires that he performs under racking. The reason the obligation was not enforced previously was staff did not have time to do this. The Respondent have now altered the way this task is carried out in order to make this less burdensome for staff and it has improved efficiency. In light of the terms of the contract of employment of the Complainant, the High Court decision in Kenny v An Post [1998] IR285 which found an arrangement which had not been recorded in writing by representatives of the employers and employees and was not sanctioned by the Department was a work practice that did not have contractual effect, and the decision of Rafferty v Bus Eireann [1996] IEHC 33, I find the Respondent is entitled to enforce their job description, and change how the task is carried out for efficiency purposes. There is no breach of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

I find the complaint is not well founded.

CA-00036663-003

The Complainant claims a breach of S7 of the Terms of Employment (Information) Act 2004 as changes to his terms and conditions of employment were not notified within one month in accordance with S5 of the Act. Having considered the terms of the Complainant’s contract of employment the change  to the task in his job description does not amount to a change to his terms and conditions of employment. The complaint is not well founded.

CA-00036663-004

The Complainant claims penalisation under S28 of the Safety Health & Welfare at Work Act 2005 due to his complaint about being requested to complete a new task without proper training. The Respondent says proper training was already provided.

Section 27(3) of the Safety Health and Welfare at Work Act provides:

An employer shall not penalise or threaten penalisation against an employee for acting in compliance with the relevant statutory provisions,

performing any duty or exercising any right under the relevant statutory provisions,

making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

The Complainant has provided evidence of numerous complaints regarding his treatment by the Respondent regarding change of tasks following the transfer which were never considered by the Respondent, however, none of the complaints relate to alleged breaches of health and safety within S27 (3) of the Safety Health and Welfare at Work Act 2005.

In the circumstances, I find the complaint of penalisation is not well founded.

CA-00036663-001

I find the complaint is not well founded.

CA-00036663-002 and CA-00036663-005 These complaints have been withdrawn.

CA-00036663-003 This complaint is not well founded.

CA-00036663-004 This complaint is not well founded.

Variation of tasks, work practices and contractual terms,