FULL RECOMMENDATION
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES: NOONAN SERVICES GROUP LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - DUREZA SUMAYAO DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00014745 CA-00018937-005 The Complainant communicated with the Court by ‘phone and e-mail shortly before the hearing of the Court to advise that she would not be attending the hearing. She proffered no reason for her non-attendance and did not seek a postponement or any change to the arrangements made to hear the appeal. She had earlier provided the Court with a written submission in advance of the hearing. Summary position of the Complainant as set out in her written submission The Complainant submitted that she had been employed in her role by a previous employer until October 2010 when her employment transferred to the Appellant under a Transfer of Undertakings within the meaning of the Regulations. She contended that prior to her transfer she had received pay increases consistent with increases made to the statutory minimum rate set out in a series of Employment Regulation Orders (EROs) enacted during her employment. She submitted that these increases were applied to her rate of pay notwithstanding her rate of pay at all times prior to the transfer exceeded the minimum statutory rates of pay set out in successive EROs. She submitted that her rate of pay at the date of transfer was €10.98 per hour and remained so at the date of her complaint made on 4thMay 2018. She submitted that the failure of the Appellant to increase her rate of pay when ERO’s were enacted since 2010 amounted to a breach of the Regulations. The Complainant submitted her contract of employment to the Court as part of her written submission which did not contain a provision as regards application of increases consistent with increases in the statutory rates contained in ERO’s when enacted. She also submitted pay slips dating from 2007 and a series of internal e-mails both from her previous employer and from the Appellant. Summary position of the Appellant The Appellant submitted that no element of the contract of employment of the Complainant at the time of transfer in 2010 demonstrated an entitlement to receive a pay increase on each occasion when an ERO was enacted. The Appellant accepted that an internal e-mail of the previous employer dating from 2007 demonstrated that on that occasion a pay increase was applied to the Complainant which was equivalent in percentage terms to the value of an increase emerging from a ERO enacted at that time. The Appellant submitted that a single occasion when such an event occurred cannot be taken to amount to the creation of a contractual right to have a similar increase applied at any time in the future. The Appellant submitted that the legislation governing the enactment of ERO’s was struck down as unconstitutional in 2011 and consequently no contention could be made that any contractual entitlement, the existence of which is rejected by the Appellant, could survive the striking down of the legislation in place at the time the alleged contractual term was in being. The Appellant submitted that no basis whatever had been put forward by the Complainant to support her contention that a contractual entitlement which she enjoyed prior to the transfer of the business to the Appellant in 2010 was not carried forward. Relevant Law Section 4 of S.I. No. 131/2003 -European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003provides in relevant part as follows:
Discussion and conclusion The Complainant failed to appear at the hearing of the Court and confirmed to the Court in advance that she did not intend to do so. The Court is satisfied that the Complainant was on notice of the date, time and venue of the hearing but that she decided for whatever reason not communicated to the Court that she would not attend the hearing. The Court has heard from the Appellant at the hearing and has carefully considered the written submissions of both the Complainant and the Appellant which had been provided in advance to the Court. The Court has been unable to identify any documentation in the submission of the Complainant which establishes that she had an entitlement by virtue of her contract, whether explicitly recorded or implied, to receive increases equivalent to increases in statutory rates contained in ERO’s when enacted. Neither has she demonstrated that the application of such increases to her was an established custom or practice or term of her employment prior to the transfer. The Complainant has not demonstrated that any collective agreement was in being in the employment prior to the transfer which made provision for the application to her of rates of pay increase contained in an ERO in the manner contended for by her. The Appellant has submitted that no such entitlement was enjoyed by the Complainant at the date of transfer and has contended that in any event the relevant legislation was struck down as unconstitutional shortly after the transfer occurred. In all of the circumstances, the Court concludes that the Complainant has not made out her complaint that the Respondent has failed to apply the terms of the Regulations. Decision The Court decides that the Appellant has not breached the Regulations following the occurrence of a transfer within the meaning of the Regulations in 2010 or at any time since in the manner contended for by the Complainant. In those circumstances, the Court decides that the within appeal must succeed and the decision of the Adjudication Officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
