FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN (ROI) LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00014780 CA-18951-005 Ms. Laisa, ‘the Complainant’ was an employee of ISS Facilities Ltd. when a transfer of undertakings arose in 2010 and, as a result, she became an employee of Bidvest Noonan, Ltd., ‘the Respondent’. The Complainant is one of a number of people in a similar position whose pay at the time of transfer exceeded the rates provided for in the industry Employment Regulation Order, ‘ERO’ and who contend that there was a contractual obligation on the new employer, the Respondent, to increase their rate of pay in line with increases in the ERO rates, as, it is contended, this contractual commitment was created by the previous employer who adopted a practice of increasing their pay rates in line with increase in the ERO rates. The Complainant made a series of complaints on the same set of facts under a number of Acts to the Workplace Relations Commission, ‘WRC’. This is an appeal by the Complainant of the Decision of an Adjudication Officer, ‘AO’, that her complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) was not well founded and was statute barred. Summary of Complainant Arguments The Complainant worked for the Respondent, then for ISS and then for the Respondent again and, on both transfer of undertakings, existing benefits were maintained, except for the Respondent’s failure to maintain the application of ERO increases that were paid by ISS in 2004 and 2007. The Respondent assured employees that existing benefits and agreements would be maintained. The AO was incorrect to apply s.41 of the Workplace Relations Act, which provides for a 6 month time limit. The protections of the Regulations cannot be curtailed by a time limit. The selective application of the ERO increases in 2015 and 2016 were a violation of the Regulations that continued on each pay day. The declaration of unconstitutionality of the JLCs did not cause the agreement to expire. The Complainant’s contract can only be changed with her agreement , as specified in the Employees (Provision of Information and Consultation) Act 2006. The Court is referred to S.I. No. 131/2003. Summary of Respondent Arguments The AO Decision affirms the Respondent’s position. The transfer took place in 2010. If the Complainant is correct and she is entitled to an increase, then it was due in October 2015, which is in excess of the 6 months allowed for a claim. The Decision in HSE v McDermott (2014) IEHC 331 cannot apply as it is specific to the Payment of Wages Act. Even if that case was applicable, the claim is out of time because of how it is framed. The claim must fail as any agreement that may have been in existence ceased when the JLC system was declared to be unconstitutional. The claim is out of time. In addition, in Case TUD211 the Court decided in a case in which the facts are identical to the instant case that; “The case before the Court under the Regulations is inseparable from the facts argued in the case considered by the Court under the Payment of Wages Act ,insofar as the Complainant argues an entitlement, by virtue of her contract, to have her pay increased in line with increases under the EROs for the relevant industry. It follows logically that if the Determination by the Court in the Payment of Wages case, on the same facts as the instant case, is that no such entitlement exists then there can be no basis for a claim under the Regulations. The Court, having determined in the parallel case that the Complainant has failed to substantiate a claim that she has a contractual entitlement to have her pay increased in line with increases awarded under the EROs for the contract cleaning industry and, as there are no additional or different facts put forward in support of the instant case that differentiates it in terms of substance from the parallel case, is not in a position to uphold the claim under the Regulations.” The Appropriate law S.I. 131/2003 “contract of employment” means – (a) a contract of service or apprenticeship, and (b) any other contract whereby an individual agrees with another person who is carrying on the business of an employment agency within the meaning of theEmployment Agency Act 1971(No. 27 of 1971), and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract), whether the contract is express or implied and, if express, whether it is oral or in writing; Rights and obligations 4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. (2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. Deliberation The facts in this case are identical to the facts in case number TUD211. Both Complainants are part of a group of workers with identical complaints based on their belief that they had an entitlement to have their pay increased in line with ERO increases, while in receipt of pay above ERO rates. The Court was conscious that the Complainant was not represented professionally and asked if she had any new or additional facts to put forward to differentiate this case from that in TUD211. The Complainant did not, apart from noting that the Complainant in the instant case had worked for the Respondent previously. It is not clear to the Court why that would be thought to have any relevance to the issues for consideration. In circumstances where the Court has made a Determination based on certain facts, it would be unusual for the Court to ignore this and then go on to make a different finding on the identical, relevant, facts, without any new arguments or considerations to be taken into account. In the absence of such, the Court has no reason to change its interpretation of the law and consequently determines in accordance with its previous Determination. This Determination, in case number TUD211, in turn, followed the logic of the Court’s Determination in PWD218 in which the Court found that the Complainant in that case, Ms. Rabonsa, had failed to establish a contractual entitlement to have her pay increased in line with ERO pay increases. The same applies in the instant case in respect of identical facts. Therefore, the appeal must fail. A more detailed reasoning is set out in PWD218. It is not necessary for the Court to consider the question as to whether or not the complaint is statute barred as no contractual entitlement has been established. Determination The Decision of the Adjudication Officer is upheld.
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