TUD2210

1.Appeal Of Adjudication Officer Decision No(S) ADK-00034320 CA-0045302-006

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 1July 2022. A Labour Court hearing took place on 1December 2022. The following is the Determination of the Court:



DETERMINATION:

Background to the Appeal

This is an appeal by Mr Conor Williamson (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00034320/CA-00045302-006, dated 4 June 2022) under the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 (‘the Regulations). Notice of Appeal was received on 4 July 2022. The Court heard the appeal in Dublin on 1 December 2022 in conjunction with a number of related appeals bearing the following reference numbers: UD/22/88; PW/22/177; TU/22/9; TU/22/10; PW/22/178; WTC/22/167; MN/22/16; UD/22/89; RPA/22/17. Each of the Complainant’s appeals being advanced are predicated on his assertion that his employment transferred by operation of law from his former employer to Dublin City Council (‘the Respondent’) on 1 July 2021. The Adjudication Officer held that no such transfer had been established and that none of the claims were well-founded.

The Factual Matrix

The Complainant was employed as licensed dog warden by David Stone T/A Ashton Dog Pound and Warden Services (‘Ashton’) between July 2017 and 30 June 2021. Ashton provided dog warden and dog pound services up to 30 June 2021 under contract for Dublin City Council (‘the Respondent’) and other local authorities also. It is common case that the Complainant was employed by Ashton for the purposes of fulfilling its contract to provide dog warden services to the Respondent only.

In March and April 2021, the Respondent conducted an expression of interest and tender process for the provision of dog warden services. No third party was appointed following those processes. The Respondent, therefore, decided to insource the provision of dog warden sources through its own animal welfare unit. In doing so, the Respondent took possession of five dogs and related documentation that had been in the care of Ashton along with official notice books and records. The Respondent did not take on any staff, including dog wardens, that had been employed by Ashton.

The Claim

The Complainant submits that intangible and tangible assets transferred to the Respondent from Ashton on 1 July 2021 giving rise to a transfer of undertakings between them on 1 July 2021. In the Complainant’s submission, the intangible assets that transferred consisted of the residents and dog owners in the Respondent’s area. He submits that the tangible assets that transferred comprised records and documents compiled by dog wardens employed by Ashton.

The Respondent’s Submission

The Respondent submits that no transfer of an economic entity that retains its identity occurred as between it and Ashton on 30 June/1 July 2021. Rather, it submits, what occurred was that Ashton merely lost a contract for the provision of dog warden services to the Respondent and the Respondent brought the provision of the relevant inhouse without any concomitant transfer of significant operational assets.

Discussion and Decision

The Court finds that the service in question – the provision of dog warden services in a defined geographical area under the supervision of a particular local authority – is a labour-intensive operation which cannot be carried on in the absence of appropriately licensed personal. Neither the Complainant nor any other licensed dog warden employed by Ashton for the purposes of fulfilling its contract to the Respondent up until 30 June 2021 transferred their employment to the Respondent on or after that date. It follows – applying the principles articulated by the Court of Justice of the European Union inS�zen v Zehnacker Gebaeudereingung GmbH(1997) C-13/95 and in subsequent judgments – that no transfer of undertakings within the meaning of the Regulations took place between Ashton and the Respondent.

The Court finds, therefore, that the within claim under the Regulations is not well-founded and the appeal fails. The decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Alan Haugh
COR	______________________
December 2022	Deputy Chairman