Complainant

Respondent

Parties

Celine  Corrigan

Coal Services International (Ireland) Limited

Representatives

  Self-represented

John Barry Management Support Services (Ireland) Ltd

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-00038312-001

23/06/2020

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-00038312-002

23/06/2020

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-00038312-003

23/06/2020

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

CA-00038312-004

23/06/2020

The complainant submitted three claims under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).  She also submitted a claim under the Payment of Wages Act and referred a dispute under section 13 of the Industrial Relations Act, 1969 (separate Adj).

The claims were submitted on the 23rd of June 2020.

Preliminary Issue Time limits regarding CA-00038312-001, CA-00038312-002 and CA-00038312-003:

The claims were submitted on the 23rd of June 2020.  The respondent at the hearing submitted that the claims were out of time as the transfer of undertakings took place on the 23rd of December 2019.   The respondent submitted that the TUPE claims were out of date as the six-month period for submission of those claims would have expired on 22nd of June 2020.  

The within claims were submitted on the 23rd of June 2020.  The complainant at the hearing argued that she had in fact submitted the claim form on the night of the 22nd of June 2019 but that owing to a problem with the WRC website the complaint form was not accepted until after 12 midnight as she kept receiving an error message from the WRC website when trying to submit the forms.   The complainant in support of this assertion submitted a screenshot of her complaint form and of the message she received from the WRC website. 

Section 41 (6) of the Workplace Relations Act 2015 provides that, “…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

However, Section 41(8) provides that, “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The established test for establishing such reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 where the test was set out in the following terms: “it is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant must satisfy the Court, as a matter of probability, that had those circumstances not been present she would have initiated the claim in time.  The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.”

In the present case the complainant submit that her form was submitted on time but due to an IT issue with the WRC website it was only accepted after midnight thus putting it out of time by 1 day.

Having considered the evidence adduced in relation to this matter I am satisfied that the complainant has demonstrated “reasonable cause” for the 1-day delay in submitting her complaint.

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

CA-00038312-004

23/06/2020

The claimant submits that she should have received a payment of €1,504 on the 26th of December 2019.

Additionally, the complainant submits that she did not receive her annual bonus of €5,000 which was due to be paid in December 2019 as it was  paid in 2017 and 2018 at that level.

The complainant submits that the respondent on 23rd December 2019 made false and unsubstantiated allegations against her and cited those as the reason for the non-payment of the bonus.

The respondent submits that the complainants work centred around organising an international conference which took place at the end of November annually.  The respondent stated that this meant that the complainants hours of work were typically about 20 hours a week for 7 to 8 months of the year and then increased to 37.5 in the period leading up to the conference and after the conference.  

The respondent submits that following the November 2019 conference, arrangements were being put in place to sell the business and that the complainant was advised of this on 17th November 2019 and on 27th November the complainant was advised that she would only be required to work a 20-hour week for the remaining weeks.    The complainant worked 20 hours per week in December 2019 and was paid for same. 

The complainant in her claim form submitted to the WRC stated that she had incurred an underpayment of €1,504 on the 26th of December 2019.   At the hearing the complainant advised that the amount deducted was in fact made up of four separate payments dating from the 2nd to the 31st of December 2019.

 I am satisfied that only one of these alleged deductions took place during the cognisable 6-month time period of the complaint and that is the payment which is alleged to have been deducted on the 26thst of December 2019.

The complainant advised the hearing that this payment amounted to €411.25.  This amount relates to the difference between what she was paid when working a full 37.5-hour week and what she was paid when working a 20-hour week.

In outlining her payment of wages claim the complainant advised the hearing that her hours had been reduced in the month of December 2019 to a 20-hour week and that her wages were also reduced.  The complainant advised the hearing that the respondent was involved in the organisation of an annual conference which normally took place in November of each year.  The complainant was employed as a PA/ Conference Manager.

The respondent advised the hearing that the complainants work centred around organising an international conference which took place at the end of November annually.  The respondent stated that this meant that the complainants hours of work were typically about 20 hours a week for 7 to 8 months of the year and then increased to 37.5 in the period leading up to the conference and after the conference.  

The complainant submits that the business had a regular annual cycle; after the conference ended around 19th November there was always a large workload dealing with delegates enquiries after they had dispersed, requests for copies of proceedings and presentations and generally an increase in email volume after some 340+ delegates had been in close contact.   The complainant submit that her weekly hours worked in both December 2017 and 2018 were 37.5 hours per week but that she was advised that they were to decrease to 20 hours per week in December 2019.   The respondent does not deny this.

The complainant stated that the respondent owner Mr. H had advised her at the end of November 2019 that he would not require her to work any additional hours for the month of December but that she was only required to work 20 hours per week and that she could carry out these 20 hours of work from her home and did not need to come into the office.  The complainant stated that she had responded to Mr. H stating that she had not been expecting this as she had always worked 37.5-hour week during December and that this had always been the case in December.  The respondent agrees that this was the case and payslips were submitted form December 2018 showing that the complainant worked and was paid for 37.5 hour per week for each of the four weeks of December.   

The respondent stated that they were in the process of negotiating the sale of the company following the November 2019 conference and for this reason they did not need the complainant to come into the office or to work any more than a 20-hour week in December 2019 and so she was paid for a 20-hour week.  The respondent added that the complainant had been paid more when she was required to work more than a 20-hour week.  

The respondent advised the hearing that it had been involved in negotiations to sell the company since November 2018 and that the complainant had been aware of this.  The respondents stated that they announced on 18 November 2019 to all conference delegates that this would be their last conference.  

In examining whether or not an illegal deduction was made consideration must be given to whether or not the amount deducted was in fact payable.   The respondent advised the hearing that the complainant had worked 20 hours per week in December 2019 and that she was paid accordingly.

The complainant does not dispute this but rather raises an issue with the fact that her hours of work were reduced at all given that she had in December 2017 and 2018 typically worked 37.5 hours per week.   I am satisfied from the totality of the evidence adduced her that the complainant had a reasonable expectation due to custom and practice that she would continue to work a 37.5-hour week in December 2019 and that she would be paid accordingly.

I am thus satisfied that the amount of €411.25 which was deducted from her wages during the cognisable period of the complaint was properly payable to the complainant and thus I am satisfied that this portion of the claim is well founded.

The complainant has also raised a claim in respect of the non-payment of a bonus which she stated amounted to €5,000 and which she stated was due to be paid to her after the annual conference. 

There was much discussion at the hearings regarding whether or not this bonus was due to be paid to the complainant by the respondents or by the incoming new business owners following the TUPE.  Both parties agreed that the bonus was usually paid as a reward for work done and for exceptional performance and that it had always paid to the complainant by the respondent following the ICCCP conference in recognition of a successful conference.  

The complainant stated that this bonus of €5,000 had always been paid to her after the conference and stated that it had been paid to her in December 2017 and December 2018 after the conference.   The complainant states that this was in recognition of a job well done when the conference had been a success and she stated that the conference in 2019 had been an even bigger success than the previous two years.  The evidence of such success is reflected in the increased number of delegates who attended the conference and also in the increase in the respondents profit margin attributed to the conference.   The complainant stated that the November 2019 conference was the most successful with the highest number of delegates and highest profit margin.  The respondent did not dispute this.

The respondent submits that the bonus is discretionary and stated that it is awarded for exceptional performance.   The respondent stated that the complainant was paid a bonus of €2,000 on 23rd of December 2019 and as justification for not paying the remaining €3,000 allege that they had been told by a third party that the complainant had been overheard colluding to steal the conference business from them. The respondents submit that they received this information from a third party.     This allegation of collusion was not raised with the complainant until the 23rd of December 2019 when she had again asked for her bonus and the reason why it was not paid.

The respondent had initially told the complainant in November 2019 that the new owners would pay her bonus but later told her by email dated 6th of December that she was not going to receive her bonus and that the reason given by the respondent was  ‘because of a number of issues before and during the conference’.  The complainant stated that she was advised that she would however be given a cheque for €2,000 if the sale went through successfully.  The complainant stated that she did receive the cheque for €2,000 when the sale went through.  The complainant advised the hearing that she had also worked a lot of overtime in the period leading up to the conference and had not been paid for this but stated that she did this in the expectation that she would receive her usual bonus.

I am satisfied that the complainants claim for the remaining bonus amount relates to a time period prior to the TUPE and that it is more appropriate to this claim.   I am also satisfied that the complainant has a right to expect the payment of the bonus following a successful annual conference and as it had been the custom and practice of the respondents to pay her this bonus following the conference.    It is also clear that the respondents sought to avoid paying the complainant her annual bonus for 2019 and initially advised the complainant that the incoming new business owner would pay her the bonus for work she had carried out in relation to the 2019 conference for which they the respondents were responsible had reaped the benefits.   In addition, the respondent later advised the complainant that she was not paid the bonus due to their belief that she had been colluding with others at the conference to steal the conference, this allegation  was never investigated or put to the complainant.

The complainant advised the hearing that the first she heard of this allegation was on the 23rd of December 2019 the day o the transfer,  she said she was shocked and taken aback by this allegation and was so upset that she walked out of the office and said, 'I don't need to listen to this shit anymore' and walked out of the door of the office. 

The respondent advised the hearing that the payment of the complainants bonus was discretionary and that it was only payable for exceptional work which they felt the complainant was not entitled to after they had been told that she had been colluding with clients to steal the business.  The respondent advised the hearing that the complainant was aware from the 6th of December that the bonus was not being paid to her and submits that the claim is outside of the 6-month time limit.   The respondent also submits that they paid the complainant a bonus of €2,000.

The complainant at the hearing having raised this matter initially under the Payment of Wages claim  sought to raise it under the TUPE claims as she stated she had been led to believe that her bonus would be paid by the transferee Ms. P when it had not been paid by the respondents.   The respondent stated that if it was the case that the complainant expected and believed that the bonus would  be paid by Ms. P then she could have pursued Ms. P  for the bonus payment.  

Having heard all of the evidence I am satisfied that the claim in relation to the bonus payment relates to a failure by the respondent to pay the complainant a bonus payment which she expected to receive following the conference.  I note that the complainant was initially told that the new owner would pay her the bonus and then was later told by email dated 6th of December that she was not going to be paid the full amount of the bonus without being told the reason for same.   It is clear from the evidence adduced that the respondent in later discussions again advised the complainant that the bonus would be paid by the new owner adding further confusion the matter.   The respondent has also submitted that this aspect of the claim is out of time stating that the complainant was advised on 6th of December that the bonus was not being paid however I am satisfied that the complainant in this case has a reasonable expectation that her bonus would be paid by the respondent and that this expectation continued up until the 23rd of December when the business was signed over to the new owner and the respondent then advised her that her bonus was not being paid due to an allegation of collusion. 

I am satisfied that the complainant was paid a bonus of €2,000 by the respondent on the 23rd of  December 2019 and that the additional amount of €3,000 was also payable to the complainant at this time.   Accordingly,  I am satisfied based on the totality of the evidence adduced that an amount of €3,000 is properly payable to the complainant by the respondent.

I declare this claim to be well founded and I order the respondent to pay to the complainant the sum of €3,411.25 in total.

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-00038312-001

23/06/2020

The complainant submits that the Transferor did not consult with her in relation to the transfer

The respondent (transferor) submits that it had consulted with the complainant a number of times before and during the transfer beginning on the 17th of November 2019 and submits that the transfer took place on the 23rd of December 2019. The respondent submits that it did discharge its obligations to the claimant by making her aware of the transfer and also during the discussions with the new owner, requesting the new owners to make arrangements to meet with the claimant to discuss what they envisaged happening when they took over the business.

Regulation 8 of the TUPE Regulations require:

(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.

(2) The transferor 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 transfer is carried out.

(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.

(4)   Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

The complainant stated that she had not been consulted with by the respondent in relation to the transfer.   The respondent advised the hearing that it had first advised the complainant in relation to the transfer on the 17th of November 2019 more than 30 days before the transfer took place. The transfer took place on the 23rd of December 2019.  The complainant agrees that the respondent advised her on the 17th of November 2019 that the business was being bought by someone else.  The respondent also advised the hearing that it had 2 potential buyers in negotiations to buy the business and they had advised the complainant of this on the 27th of November and told her that the parties would be in contact with her regarding the transfer.  The respondent advised the hearing that the first potential buyer had withdrawn from the negotiations leaving only one contender Ms. P.   Both parties also agreed that the respondent made arrangements with the new owner Ms. P to contact the complainant prior to the transfer to discuss the business going forward. 

The respondent advised the hearing that the new owner Ms. P contacted the complainant on the 4th of December and made arrangements to meet with her to discuss the business going forward.   The complainant does not dispute this and agreed that she had met with Ms. P on the 10th of December 2019.

The respondent advised the hearing that the complainants terms and conditions transferred over to the new owner without any changes.  The complainant when questioned at the hearing agreed that her terms and conditions as per her contract had transferred over to the new owner.   The complainant submits that there was an issue with the payment of her annual bonus by the respondent, but this matter was also raised under a payment of wages claim and has been dealt with in that decision.

I declare this claim to be not well founded

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-00038312-002

23/06/2020

The complainant submits that the transferor did not advise her in relation to the transfer.

The respondent submits that it had first advised the complainant in relation to the transfer on the 17th of November 2019 more than 30 days before the transfer took place. The transfer took place on the 23rd of December 2019.   The respondent did discharge its obligations to the complainant by making her aware of the transfer and also during these discussions with the new owner, requesting the new owners to make arrangements to meet with the claimant to discuss what they envisaged happening when they took over the business. The respondent submits that the complainants terms and conditions were to remain the same following the transfer and that her employment carried over and remained the same under the new owner.

Regulation 8 of the Regulations require:

(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.

(2) The transferor 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 transfer is carried out.

(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.

(4)   Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

The complainant stated that she had not been advised by the respondent in relation to the transfer.   The respondent advised the hearing that it had first advised the complainant in relation to the transfer on the 17th of November 2019.  The transfer took place on the 23rd of December 2019.  The complainant agrees that the respondent advised her on the 17th of November 2019 that the business was being bought by someone else.  The respondent also advised the hearing that it had 2 potential buyers in negotiations to buy the business and they had advised the complainant of this on the 27th of November and told her that the parties would be in contact with her regarding the transfer.  The respondent advised the hearing that the first potential buyer had withdrawn from the negotiations leaving only one contender Ms. P.   Both parties also agreed that they made arrangements with the new owner Ms. P to contact the complainant prior to the transfer to discuss the business going forward.  The respondent advised the hearing that the new owner Ms. P contacted the complainant on the 4th of December and made arrangements to meet with her to discuss the business going forward.   The complainant does not dispute this and agreed that she had met with Ms. P on the 10th of December 2019.

The respondent advised the hearing that the complainants terms and conditions transferred over to the new owner transferee without any changes.    The complainant when questioned at the hearing agreed that her terms and conditions as per her contract had transferred over to the new owner.

 The complainant submits s that there was an issue with the payment of her annual bonus by the respondent, but this matter was also raised under a payment of wages claim and has been dealt with in that decision.   

I declare this claim to be not well founded

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-00038312-003

23/06/2020

The complainant submits that her previous employer, the respondent did not ensure that her terms and conditions transferred over to the new employer.

The respondent submits that it had consulted with the complainant a number of times during the transfer beginning on the 17th of November 2019 and that the transfer took place on the 23rd of December 2019.    The respondent submits that it made arrangements for the new owner to contact the complainant and to meet with her prior to the transfer.  The respondent submits that the complainants terms and conditions were to remain the same following the transfer and that her employment carried over and remained the same under the new owner.    

The respondent submits that a copy of the complainant contract and salary details were provided to the new employer.  The respondent also asked the transferee to meet with the claimant and have discussions with the claimant about the transfer and how the business would operate going forward.  At the time of transfer all information was provided to the Transferee in relation to terms and conditions of employment as are required under the regulations and at no time did the company in any way take any action that did not ensure the claimants terms and conditions of employment transferred.

Regulation 8 of the Regulations require:

(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.

(2) The transferor 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 transfer is carried out.

(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.

(4)   Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

The respondent advised the hearing that the complainants terms and conditions transferred over to the new owner without any changes.   The respondent stated that the complainants contract was provided to the new owner and that she was advised that the salary amount was out of date as it had since then increased.   The respondent stated that they provided the updated salary details separately via their accountant.  The respondent stated that the new owner was shocked at the high salary the complainant was on but agreed to pay her the same salary. 

The respondent added that the obligation of the Transferor in this matter is to provide the Transferee all details of the Claimants terms and conditions of employment on the date of transfer and we fulfilled this obligation.    At all times, the claimant was entitled to transfer under her existing terms and conditions of employment and to the knowledge of the Company this was the case on the date of transfer on 23rd December 2019.

The respondent advised the hearing that the complainants terms and conditions transferred over to the new owner transferee without any changes.    The complainant when questioned at the hearing agreed that her terms and conditions as per her contract had transferred over to the new owner.

The complainant submits s that there was an issue with the payment of her annual bonus by the respondent, but this matter was also raised under a payment of wages claim and has been dealt with in that decision.

I declare this claim to be not well founded