ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00034320

Parties:

	Complainant	Respondent
Parties	Conor Williamson	Dublin City Council

Representatives

Barnaba Dorda SIPTU

Clare Bruton B.L. instructed by Edel Bradley Law Department, DCC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00045302-001	22/07/2021
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-00045302-002	22/07/2021
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-00045302-004	22/07/2021
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-00045302-006	22/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00045302-007	22/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00045302-008	22/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00045302-009	22/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00045302-010	22/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00045302-011	22/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00045302-012	22/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00045302-013	22/07/2021

Date of Adjudication Hearing: 26/05/2022

Workplace Relations Commission Adjudication Officer: Conor Stokes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant was employed as a dog warden with a third party and submitted that he had accrued employment rights with this respondent via a Transfer of Undertakings conducted between his employer and the respondent.

The respondent submitted that it never employed the complainant and sought a preliminary decision on the matter.

Summary of Complainant’s Case:

Preliminary Issue: Transfer of Undertakings

The complainant submitted that he was told by his former employer that a Transfer of Undertakings was in existence. He submitted that although he had no written evidence or discussions or of agreements between his former employer and the respondent, it was submitted that there ought to have been a Transfer of Undertakings.

CA-00045302-001 Payment of wages

The complainant submitted that his employer failed to pay his wages.

CA-00045302-002 Transfer of undertaking

The complainant submitted that a Transfer of Undertaking ought to have taken place

CA-00045302-004 Transfer of undertaking

The complainant submitted that a Transfer of Undertaking ought to have taken place

CA-00045302-006 Transfer of undertaking

The complainant submitted that a Transfer of Undertaking ought to have taken place

CA-00045302-007 Penalisation

The complainant submitted that he was penalised by his employer

CA-00045302-008 Payment of wages

The complainant submitted that his employer failed to pay his wages.

CA-00045302-009 Hours of Work

The complainant submitted that he was not paid correctly under the legislation

CA-00045302-010 Unfair Dismissal

The complainant submitted that he was unfairly dismissed by the respondent

CA-00045302-011 Minimum notice

The complainant submitted that his employer did not provide him with minimum notice as required under the legislation.

CA-00045302-012 unfair Dismissal

The complainant submitted that he was unfairly dismissed by the respondent

CA-00045302-013 Redundancy Payment

The complainant submitted that his employer did not provide him with a redundancy payment as required under the legislation.

Summary of Respondent’s Case:

Preliminary Issue: Transfer of undertakings.

The Respondent contends that what occurred was not a transfer under the Transfer Regulations, and therefore there cannot have been a breach of any part of those Regulations. Rather it was a mere loss of contract by the complainant’s employer for the provision of dog warden services and the bare contract, with no assets, were taken in house by the Respondent.

The respondent submitted that no transfer of undertakings took place in relation to this complainant, all other complaints fall.

CA-00045302-001 Payment of wages

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-002 Transfer of undertaking

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-004 Transfer of undertaking

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-006 Transfer of undertaking

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-007 Penalisation

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-008 Payment of wages

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-009 Hours of Work

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-010 Unfair Dismissal

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-011 Minimum notice

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-012 unfair Dismissal

The respondent submitted that the complainant was not in its employment at any time.

CA-00045302-013 Redundancy Payment

The respondent submitted that the complainant was not in its employment at any time.

Findings and Conclusions:

Preliminary Issue: Transfer of Undertakings

The respondent submitted that the complainant appears to suggest that the Transfer Regulations should have applied to transfer his employment to the respondent. The respondent contends that what occurred was not a transfer under the Transfer Regulations but was rather a mere loss of contract by the complainant’s employer for the provision of dog warden services and the bare contract, with no assets, were taken in house by the Respondent.

It was submitted by the respondent that from the facts as outlined by the complainant that all that has occurred is the mere transfer of a contract, and this is not sufficient to trigger the application of the Regulations.

The respondent suggested a number of cases were relevant, both at European and at local level. The respondent submitted that the seminal case in this regard concerning an alleged transfer on the sale of a business is the European Court of Justice decision in Spijkers (Josef Maria Antonium Spijkers v Gebroeders Benedic Abattori CV and Alfred Benedik en Zonen BV [1988] 2 C.M.L.R. 296). In that case the court stated:

"A transfer of an undertaking, business or part of an undertaking or business does not occur merely because its assets are disposed of. Instead, it is necessary to consider, in a case such as the present, whether the business was disposed of as a going concern..."

This was also made clear by the Court of Justice in the second seminal case of Suzen (Suzen v Zehnacker Gebaudereingigung GmbH Krankenhausservuce [1997] I.R.L.R. 255) as follows:

"The mere fact that the service provided by the old and new contractor is similar does not support the conclusion that an economic entity has been transferred. An entity cannot be reduced to the activity entrusted to it. Consequently, the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of the Directive."

The respondent submitted that it is well established within the jurisprudence of the Court of Justice of the European Union (CJEU), followed numerous times in Ireland, that in order to determine whether an economic entity retains its identity the factors set out in Spijkers (above) have to be examined. The ECJ said in that case that in order to determine if an entity had "retained its identity":

"It is necessary to consider all the facts characterising the transaction in question, including:

· the type of business concerned.

· whether assets, tangible (such as buildings and movable property) or

· intangibles are transferred;

· the value of the intangible assets at the time of the transfer.

· whether the majority of employees are taken over;

· whether or not its customers are taken over;

· the degree of similarities between activities that carried on before and

· after the transfer;

· the period if any for which activities are suspended.

It should be noted, however, that all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation."

The respondent submitted that these seminal cases have been followed time and time again by the ECJ (now CJEU) and also by the WRC and Labour Court, as well as the High Court. All of the criteria set out above must be examined, not just the transfer of mere assets, and an economic entity cannot be reduced to its activity alone. The Labour Court has held in Overpass Ltd T/A Ocean Property Management v Clancy (TUD 1713) that the above criteria are “decisive criteria for establishing the existence of a transfer” for the purpose of the Transfer Regulations.

The respondent further submitted that the key focus of the test can be further seen in Case E-2/04, Rasmussen and Others – v- Total E & P Norge AS, where the Court stated

"The Court recalls that in assessing the identity of the entity in question, it must be borne in mind that the activities pursued are not the only factors that characterise an entity. An entity cannot be reduced to the activity pursued by it. Its identity also emerges from other factors, such as its workforce, its management staff, the manner in which its work is organised, its operating methods, or indeed where appropriate, the operational resources available to it. Furthermore, as held by the Court in Eidesund, at paragraph 36, for a part of the business' activity to be considered a separate economic entity, it must be distinguishable from its other activities and normally have employees mostly assigned to that unit …

One of the factors to be considered by the national court when deciding whether an undertaking, business or part of a business has been transferred, is whether the transferee has employed the transferor's employees. If the work to be performed does not require any particular expertise or knowledge, the assumption of personnel is less indicative of the identity of the undertaking. On the other hand, where a high percentage of the personnel is taken over, and where the previous business is characterised by the high degree of expertise of its personnel, the engagement of that same personnel by the transferee may support a finding of identity and continuity of the business. Where a business activity is characterised by a stable workforce carrying out the activity and where the transferee chooses to engage the workforce of the transferor for the continued operation of the business, this may suffice to constitute a transfer within the meaning of the Directive".

The facts of this case are that the complainant was employed by his employer and that the contract to run the warden service ran out and was not renewed. There are additional circumstances surrounding the cessation of the contract in the manner in which it did which are not pertinent to the case at hand. No assets transferred to the respondent save for the paperwork for the five dogs that were in possession of the employer at the end of the previous contract. The respondent did not take possession of vans, uniforms, the containment area for the dogs and other capital assets belonging to the respondent. No staff transferred over to the respondent. These facts are not in dispute.

The complainant was an authorised officer under the legislation but the service as it now runs is in a different format in that the dog warden role has been appended to the role involving the care of animals and the Department runs in a fundamentally different manner to the Dog Warden service as it previously operated. This is not in contention.

The complainant stated in evidence that his employer said to him that there was a transfer of undertakings in existence but did not substantiate this with any form of written follow up or indication to his staff of the specifics of such a transfer. The complainants’ assertions amount to mere speculation in the absence of any verifiable fact of the existence of such a transfer.

Having regard to the foregoing, I find that no transfer of undertakings has been established to my satisfaction and I am therefore satisfied that the complainant was not an employee of the respondent.

CA-00045302-001 Payment of wages