FULL RECOMMENDATION
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES : LUXURY RESERVATIONS LIMITED T/A MARRIOTT INTERNATIONAL (REPRESENTED BY MR. TOM MALLON B.L. INSTRUCED BY O'FLYNN EXHAM'S SOLICITORS) - AND - MRS KAROLINA WARSZEWSKA (REPRESENTED BY MS. LORNA MADDEN B.L. INSTRUCTED BY FINBARR MURPHY SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00030068, CA-00039715-001. DETERMINATION: Background The Complainant was employed by a company called Starwood Reservations Limited from January 2014. On the 1stApril 2020 her employment was transferred to the Respondent. The Complainant submits that her terms and conditions of employment were adversely affected by the transfer. The parties agreed that this complaint is in respect of a net issue relating to compensation for working Public holidays with the exception of public holidays during the Christmas period as set out in the handbook. It was not disputed that the change contained in the contract was not implemented until 1st October 2020 which was after the is complaint was lodged. Complainants’ submission Ms Madden BL on behalf of the Complainant submitted that the terms of her contract were varied in respect of Public Holidays. It was her submission that prior to the transfer the Complainant had the option of being paid for a Public holiday or taking a day in lieu at a time of the employee’s choosing. The employee handbook at page 22 under the heading “public holidays” states employees “required to work may chose between receiving payment at double time or taking a day’s vacation”it goes on to say that following each Public holiday the staff member should complete a survey setting out their preference. The Complainant submitted that her new contract following the transfer states “should you be required to work on a public holiday you are entitled to an extra’s day pay”. Ms Madden BL submitted that the breach within the cognisable period was the provision of the contract setting out the change to compensation for Public holidays. Ms Madden BL submits that removing from the Complainant the option in respect of compensation for working a Public holiday is a breach of regulation 4 of the Statutory Instrument. Ms Madden BL submitted that while she accepts that the Organisation of Working Time Act provides for the Employer to decide what form of compensation should be paid to a worker who work’s on a bank holiday, that does not apply in this case as the Complainant was entitle to have the options that she had available to her prior to the transfer. Respondents’ submission Mr Mallon BL on behalf of the Respondent submitted that it engaged extensively with the employees prior to the transfer and that in respect of the public holidays the only difference is that the Complainant is not provided with an option. The Complainant is still being compensated if she works public holidays and is being compensated in an equivalent matter a recognised by section 21 (1) of the Organisation of Working time Act 1997. The Complainant is seeking to rely on the handbook as providing a clear and unambiguous entitlement to take time off in lieu of a public holiday. However, page five of the handbook states that the policies are guidelines and that the policies maybe changed or eliminated from time to time by the company. Mr Mallon BL submitted that while the Complainant may have enjoyed having an option in respect of how she was compensated for some of the public holidays previously, it was not an unfettered entitlement as the Employer reserved the right to change the policies and it was not applied during the Christmas period as clearly set out in the handbook. This giving of an option was an operational policy which required on each occasion that the Complainant exercise an option. If an option was not exercised the default position was payment of double time. The applicable law The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I.131 of 2003) provides as follows: Rights and obligations (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. (3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts. (4) Discussion The issue for consideration in this case is a net issue as to whether having an option in respect of compensation for working a public holiday was a right or obligation arising from the Complainant’s contract of employment. The Court notes that as per the staff handbook on each occasion a preference had to be expressed and that the default position was payment of double time. The Court also notes that the employer reserved the right to change the practices contained in the handbook. The question for the Court is was this a term of employment which carried over under the transfer of undertakings. The Court having considered the submissions of the parties both oral and written find the option of taking the public holidays as a day in lieu on some but not all public holidays was an operational practice and not a right or obligation arising from the Complainant’s contract of employment. On that basis the Complainant’s complaint fails. The Court upholds the decision of the Adjudication officer. The Court so determines
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
