Complainant

Respondent

Parties

John  Callaghan

Hcl

Representatives

Melanie Crowley Mason Hayes & Curran Solicitors

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-00032678-001

03/12/2019

The Complainant is employed as a Service Delivery Manager with the Respondent, his employment having transferred to the Respondent on the 1st June 2019 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.  The Complainant brought a complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, alleging that the new/current employer (Transferee) did not inform employee representatives of certain details of the transfer and that he did not receive appropriate retention bonus payment although other colleagues in the same position did receive theirs.

The Respondent is an international technologies company who took over an Irish based business in 2019 and therefore became the employer of the Complainant with effect from 19th June 2019.  The Respondent denies the complaint on the basis that there was an extensive consultation process with staff in relation to the transfer and on the basis that the allowance referred to was not a condition of the Complainants’ employment with the Transferor.

Preliminary Issue:

The Respondent submitted that the Complainant’s employment transferred to the Respondent under TUPE Regulations on 1st June 2019 and that, in accordance with Section 41 (6) of the Workplace Relations Act 2015, the Complainant must lodge their complaint within 6 months from the date of the contravention to which the complaint relates.  The Respondent contended that, in circumstances where the Complainant filed his complaint on 3rd December 2019, the complainant’s complaint was statute barred and must be dismissed in its entirety.

The Complainant submitted that he was employed by an Irish based technologies company and that from 1st June 2019 this business, and with it his employment was transferred to the Respondent under TUPE regulations.  He submitted that during the consultation process prior to the transfer he and his colleagues were given to understand that there would be some changes necessary because of the transfer and these were confirmed as reporting relationships and a transition bonus/retention bonus.  He indicated that the staff were given new contracts to sign by the Respondent and that, at that time, they asked about the retention payment.  He advised that they were told that the matter wasn’t yet finalised but that it could be discussed further with their line managers and the Transferor.

He advised that he was contacted by his line manager on 20th June 2019 who confirmed that he was to receive the retention bonus, that it would be paid in 2 instalments (half in June 2019 and half in December 2019), and that he would receive written confirmation of the details of the bonus.  He also advised that he would need to sign acceptance of the terms attaching to that bonus and return the signed document to receive payment.  He submitted that the line manager had indicated that the entire service delivery team in the UK and Ireland had been approved for the bonus payment.

In his submission and at the hearing the Complainant submitted that when no letter was presented to him, he queried the matter and was assured that there was no issue, that the letter was already prepared.  However, the Complainant submitted that the letter was never sent.  At the hearing he advised that circa July/August 2019 the UK team received letters confirming their bonus but that none of the Irish team received correspondence and that by December 2019 other members in Dublin had received their letters.  However, he and his colleagues on the service delivery team did not receive their letters/bonus payments.  He stated that the staff contacted their line manager when nothing further was forthcoming, and they asked him to clarify matters with HR.  He advised that HR responded through the line manager to say that the Irish team would not be receiving the payment and that this was circa November 2019.  The Complainant stated that the line manager could not shed any light on why the Irish team had not received the bonus and that the non-payment had a serious impact on morale in the team. The Complainant submitted that despite several requests for clarity and understanding, he and his colleagues were told in December 2019 that the “books were closed” and that they would not be receiving payment.

In summary the Complainant contended that the bonus payment was the subject of discussion prior to the transfer, that his line manager had confirmed that he would receive the payment and in circumstances where the bonus had not been paid, he believed this to be a breach of the terms of the transfer of undertakings. He also submitted that since the transfer he and his colleagues had seen a decline in their working environment with workloads increasing “drastically”

Finally, the Complainant advised that, despite numerous queries raised both prior to and following the transfer, it was only in December 2019 that he and his colleagues received confirmation that they would not be receiving the bonus payments.  In these circumstances, he contended, he could not have lodged his case sooner.

At hearing, the Complainant called two witnesses to give evidence on his behalf, i.e. the staff representative for the service delivery team for consultation re TUPE and his line manager at the time of and following the transfer. 

Witness 1 – Staff Representative for Consultation

The staff representative confirmed that she had attended the consultation meetings with the Respondent and the Transferor prior to the transfer and she confirmed that the process had been thorough and robust.  She further confirmed that at the time of reviewing the contracts provided by the Respondent in advance of the transfer she had, on behalf of staff, raised a query in relation to the payment of bonuses and had been advised that decisions had not yet been made but that this matter could be discussed further with their line manager.  The Staff representative confirmed that she had raised a query on this matter, at a meeting prior to the transfer with a Senior Vice President of the Transferor and that she had been advised that the question was “out of scope.”

The staff representative also confirmed that she had later received a call from the line manager to confirm that she was entitled to the retention bonus and that the entire service delivery team were to receive the bonus; two staff in the UK and 4 staff in Ireland. She referred to draft letters shown to her by the Line Manger which indicated that the team members would receive the payment and a conversation where the line manager indicated that he could not give them the letters yet as they needed to be issued formally.

She also confirmed the sequence of events whereby the UK staff received confirmation of the bonus payments and that the Irish staff did not receive any correspondence.  Finally, she confirmed that in November she had sought clarity from the line manager, that she had asked for a formal response from HR but that the response had been routed back, verbally through the line manager and that it confirmed that the Irish staff would not receive the payment.  She confirmed that she sought clarity as to why that was the case but that the line manager did not know. 

Witness 2 – Former Line Manager

The witness, who was no longer an employee with the Respondent, confirmed that he had been the manager of the service delivery team prior to and following the transfer and that he continued to have a positive relationship with the Respondent.  He confirmed that staff had asked him about the retention bonus and that he had sought clarification on the matter from a senior member of HR.  He advised that HR had informed him that the team would receive the bonus and that he had contacted each team member directly, by phone, and confirmed to them that they would receive the payment.  He confirmed that he had advised each individual that that they would receive a letter outlining the details of the bonus and that they would be required to sign the letter and return it to receive the payment.  The former line manager confirmed that he could not be certain when he had advised the Complainant that he would receive the payment, but he was sure it was early Summer.

In response to questions the former Line Manager confirmed that he had shown a letter on his computer, to the staff, which had been sent to him by HR and that the letter indicated the calculations in relation to the bonus payment.  He also confirmed that he expected those letters to issue and that he had advised the staff that this would be the case.

During the hearing the Respondent suggested that those letters did not relate to the bonus payment, but rather to the redundancy offer available, and pointed out that there was no calculation involved in the bonus payment.  The former line manager responded that some time had passed since he had seen those letters but that, at the time, he had thought they related to the bonus payment.

The Respondent submitted, as set out under Preliminary Issue above that this complaint had been submitted was out of time and therefore, should be dismissed.

In the alternative, the Respondent submitted that the Complainant’s employment transferred to the Respondent under the TUPE Regulations on 1st June 2019 and that it has ensured that the Complainant’s terms and conditions transferred from his previous employer to the Respondent.  The Respondent submitted that it engaged in a very thorough information process prior to the transfer during which any issues in relation to the transfer of terms and conditions of employment were raised and resolved. The Respondent provided a copy of a Master sheet of all Q & A’s received, together with responses given under the consultation process as at 9th May 2019. 

The Respondent submitted that it wrote to the Complainant on 23rd May 2019 confirming the transfer and the fact that all terms and conditions of employment would remain the same.  In that letter the Respondent advised the Complainant that it was taking the opportunity to confirm the Complainant’s general terms and condition and appended those to the letter.  The Respondent asked for any questions relating to those terms and conditions to be advised in writing within 7 days of the date of its’ letter.  The Respondent submitted that the Complainant did not raise any issues of concern at the time or since, that it has maintained all the Claimant’s previous terms and conditions of employment and that the Complainant’s complaint should be struck out. 

Witness 3 - Senior Manager with Respondent managing the transfer

The above witness confirmed that the retention bonus was paid to retain key positions within the company to ensure the stability of the workforce during and after the transfer.  He confirmed that this bonus had not been part of the terms and conditions of staff prior to the transfer and was the Respondents mechanism to ensure a stable workforce.

He confirmed that the matter had been alluded to during transfer consultation but that it had been clear that no decisions were made prior to the transfer.  He confirmed that the selection process for those who would receive the payment was objective and fair and consisted of a number of areas of consideration including English speaking, HCL presence, numbers in role, ease of replacement and that staff were scored under those headings.  He confirmed that there was a limited budget set for the bonus payments, that it was not performance related and that a total of 12,000 staff transferred.

Preliminary Issue:

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 he would have initiated the claim in time.”

In the present case the Complainant stated that he did not lodge the complaint within the initial 6-month period as he was unaware that he would not receive the bonus payment.  He indicated that he was initially advised by his line manager that he would be paid and that it was only at year end 2019 that he was told he would not receive the bonus payment.  This was confirmed by the line manager at hearing on 11th November 2021. The Complainant contended that he did lodge his claim as soon as he came to realise that he would not be paid the bonus payment.

In such circumstances I find that the Complainant has demonstrated “reasonable cause” for the delay in submitting his complainant and therefore I am prepared to entertain his complaint as provided for under Section 41(8) of the Act.

.

The Complaint

I considered carefully the oral and written submissions from both parties and all supporting documentation provided by the parties, as well as the sworn evidence of the witnesses. 

It is clear that

·       The Respondent did engage in a robust consultation process

·       The matter of a retention bonus was discussed during the consultation process as it was recorded as No. 22 on the Master Q & A sheet provided by the Respondent

·       Information as to who would receive the bonus payment was not provided until December 2019

·       Information in relation to what criteria would underpin the selection process for receipt of the bonus was never provided to the staff

·       The Line Manager did confirm to the Complainant that he would receive the retention bonus

·       The retention bonus was not part of the terms and conditions of employment of the Complainant while employed by the Transferor.

Section 8 (1) (d) states that the transferor and the transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of “any measures envisaged in relation to the employees”.

Section 8 (3) states that “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 agreement.”

It is clear to me that the bonus payment was not a term of employment of the Complainant when employed with the Transferor and therefore it is not covered by the TUPE Regulations.  It is also clear that the Complainant’s case, as set out in his complaint form, was that that the Respondent (the Transferee) did not inform employee representatives of certain details of the transfer.

In circumstances where the bonus payment was not a term of the Complainant’s employment, I must find that the Respondent had no obligation under TUPE Regulations to maintain the payment.

However, in circumstances where the Respondent did not fully inform and consult with the Complainant’s on the measures it envisaged in relation to the payment of a retention bonus to transferring staff, nor did it seek to reach agreement on how the bonus would be applied or the criteria that would apply to selection for the payment of the bonus I find that the Respondent was in breach of the legislation and that the complaint is well founded.

I have found that the Respondent was in breach of the legislation and that the complaint was well founded.  It is my decision, therefore, that the Respondent should pay the Complainant the sum of €2000 as compensation for the impact of failure to inform the Complainant’s representative of the details relating to the retention bonus in advance of the transfer.

Transfer of undertaking, time limit