Complainant

Respondent

Anonymised Parties

A Senior Service Delivery Manager

A Technologies Company

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-00032669-001

03/12/2019

The Complainant is employed as a Senior Service Delivery Manager with the Respondent, her 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 ensure that her terms and conditions transferred from her previous employer (Transferor)

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 bonus payment 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 her complaint on 3rd December 2019, the complainant’s complaint was statute barred and must be dismissed in its entirety.

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

She advised that she was contacted by her line manager on 20th June 2019 who confirmed that she 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 she would receive written confirmation of the details of the bonus.  He also advised that she would need to sign acceptance of the terms attaching to that bonus and return the signed document to receive payment.  She 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 her submission and at the hearing the Complainant submitted that when no letter was presented to her, she 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 she 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, she and her colleagues on the service delivery team did not receive their letters/bonus payments.  She stated that she contacted the line manager when nothing further was forthcoming and asked him to clarify matters with HR.  She 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, she and her 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 her line manager had confirmed that she would receive the payment and in circumstances where the bonus had not been paid, she believed this to be a breach of the terms of the transfer of undertakings.

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

At hearing, the Complainant called her former line manager to give evidence on her behalf. 

Witness 1 – 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 her previous employer to the Respondent.  The Respondent submitted that it engaged in a very thorough information and consultation 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 2 - 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 after the transfer.

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

In such circumstances I find that the Complainant has demonstrated “reasonable cause” for the delay in submitting her complainant and therefore I am prepared to entertain her 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 she 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.

In reviewing this case I am left with some concern that the Respondent did not adequately consult with employee representatives in relation to the implementation of the bonus payment to transferring staff and I am concerned that the Respondent has failed to acknowledge that their manager did inform staff (including the Complainant) that they would be receiving the bonus payment.  Both issues had, in my view, a detrimental impact on the employment relationship between the parties and resulted in the Complainant being treated unfairly.

However, 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 her complaint form, was that that the Respondent (the Transferee) did not ensure that her terms and conditions transferred from her previous employer.  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.

I have found that the Respondent had no obligation under TUPE Regulations to maintain the bonus payment as it was not a condition of the Complainant’s previous employment. In that context it is my decision that the complaint is not well founded.

Transfer of undertaking, time limit