ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026269
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | Cleaning company B |
Representatives | Self-represented | Hugh Hegarty Management Support Services (Ireland) Ltd |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033453-001 | 31/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033453-002 | 31/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033453-003 | 31/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033453-005 | 31/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00033453-007 | 31/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00033453-008 | 31/12/2019 |
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-00033453-009 | 31/12/2019 |
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-00033453-011 | 31/12/2019 |
Date of Adjudication Hearing: 06/12/2021
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed that Testimony under Oath or Affirmation would be required, and full cross examination of all witnesses would be provided for. The Parties were also advised that this hearing was being held in public and that the names of the parties would be published. All witnesses gave evidence under oath or affirmation. The complainants evidence was given with the assistance of a Polish translator.
Owing to the sensitive nature of the details disclosed and evidence adduced in respect of the complainants mental health, I have exercised my discretion to anonymise this decision.
Background:
The claimant was initially employed by cleaning company A and transferred via TUPE to Cleaning Company B on the 20th of March 2015. The complainant lodged claims against the transferor Cleaning Company A and the transferee Cleaning Company B. The claim against the transferor is dealt with in a separate decision under Adj-00026318. The claimant is employed as a Cleaning Operative and has been on long term sick leave since October 2013 as has not returned to work. The complainant has submitted claims under section 27 of the Organisation of Working Time Act, 1997, section 7 of the Terms of Employment (Information) Act, 1994, section 77 of the Employment Equality Act, 1998, Section 39 of the Redundancy Payments Act, 1967 & under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The within claims were lodged on the 31st of December 2019 and so the cognisable 6-month period for the complaints dates from the 1st of July 2019. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033453-001 | 31/12/2019 |
Summary of Complainant’s Case:
This claim states that the complainant did not receive his paid holiday /annual leave entitlement. The complainant submits that he was out on long term sick leave and has not been compensated for paid holidays, with the exception of an amount received in December 2019 which he was informed was his holiday pay but submits that it only covers the period up to 2019. |
Summary of Respondent’s Case:
The respondent submits that the complainant is on long term sick leave and continues to accrue annual leave. The respondent submits that the complainants employment was terminated in October 2019 following a medical evaluation meeting and based on occupational health assessments of the complainant. At this time, the complainant was paid his annual leave accrued and due up until the termination date. Following this the complainant appealed his dismissal and was successful in his appeal and was reinstated. Consequently, he continues to accrue annual leave while in employment and remains on sick leave. |
Findings and Conclusions:
The complainant advised the hearing that he did not receive his paid holiday entitlements. The complainant advised the hearing that he had been out sick since 2013 and had not returned to work. The respondent advised the hearing that it had only taken over the company in March 2015. The respondent stated that the complainant had been employed by company A and had transferred to company B in 2015. The respondent advised the hearing that the complainant had been on long term sick leave since 2013. The respondent went on to state that it had referred the complainant to the company Occupational Health specialist to assess his suitability to return to work. The respondent advised the hearing that the complainant attended a medical capability meeting in October 2019 the outcome of which was that there was little likelihood of the complainants return to work within a reasonable timeframe and there were no reasonable adjustments which could be made or alternative roles available for the complainant. The respondent stated that it had looked at any reasonable accommodations which would enable the complainant to return to work but that no accommodations could be found due to the extent of the complainants condition. Following this meeting the complainants employment was terminated due to ill health and he was paid his annual leave entitlements up to the date of termination. The respondent stated that the complainant is only entitled to receive holiday pay in where he avails of his holidays or where his employment is terminated. The respondent stated that the complainants employment was terminated in October 2019 at which point he received payment in lieu of annual leave in accordance with his entitlements. The complainant agreed that he did receive his holiday pay in December 2019 but stated that he had received nothing since then. The respondent advised the hearing that the complainant had following the payment of the annual leave, appealed his dismissal and was successful in his appeal and so he was reinstated. The respondent advised the hearing that the annual leave payment had only made on the basis of the termination of his employment and that it should have been recouped once he was reinstated. The respondent advised the hearing that the complainant continued to accrue annual leave following his dismissal and reinstatement. The complainant agreed that he continues to be employed by the respondent. I am satisfied that the complainant continues to be employed by the respondent and that the claim of failure to pay him his annual leave entitlement is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033453-002 | 31/12/2019 |
Summary of Complainant’s Case:
The complainant submits that he is out sick since 1.03.2013 and has not been compensated for paid public holidays. |
Summary of Respondent’s Case:
This complaint refers to the non-payment of Public Holiday entitlements while on sick leave. It is the respondent's position that the complainant is not entitled to be paid for public holidays in circumstances where he has been absent for work on certified sick leave for more than 26 weeks. The complainant in the present case has been on long term sick leave since 2013. |
Findings and Conclusions:
The complainant lodged this claim with the WRC on the 31st of December 2019 and so the cognisable 6-month period for the complaints dates from the 1st of July 2019 to the 31st of December 2019. The complainant in the present case has been on long term sick leave since 2013. I am satisfied that the complainant is not entitled to be paid for public holidays in circumstances where he has been absent for work on certified sick leave for more than 26 weeks. I am thus satisfied that the claimant has not established that the respondent failed to pay him for outstanding bank holidays during the cognisable period of this claim. Accordingly, I declare this claim to be not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033453-003 | 31/12/2019 |
Summary of Complainant’s Case:
The complainant submits that following the transfer he was not informed of any changes affecting his position within the new company, such as redundancy notifications, disclosure of information, and statements of terms. |
Summary of Respondent’s Case:
The complainants terms and conditions remain the same following the transfer and no terms or conditions have changed. |
Findings and Conclusions:
This claim relates to an alleged change in the complainant terms and conditions following a TUPE. The complainant has been on long-term sick leave since 2013. The respondent took over the company in March 2015 following which the complainant has remained on sick leave . The respondent submits that there was no change to the complainant terms and conditions. The complainant at the hearing stated that he did not receive a new contract from the respondent Company B following the TUPE. The respondent stated that there was no requirement for a new contract as the complainants terms and conditions have remained the same following the transfer. The complainant referred to the fact that some staff had been offered redundancy at the time of the transfer, but he stated that he was not offered any redundancy. The respondent stated that redundancies are position based and stated that the complainants position was not redundant or at risk of redundancy. The complainant referred to other members of staff having received documentation which he did not receive in March 2015. When asked at the hearing which of his terms or conditions had changed the complainant initially stated that he did not know but then conceded that there was no change. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033453-005 | 31/12/2019 |
Summary of Complainant’s Case:
The complainant submits that he received a statement of his core terms which contained false or misleading information. He submits that as a result of the transfer between the companies and being out sick, he was overlooked in terms of many decisions that both companies (old and new) took in the meantime. The complainant submits that his attempts to contact them hardly resulted in any information and when it did, he believes the information was misleading. |
Summary of Respondent’s Case:
The respondent submits that the complainant was issued with a contract for a new starter in 2019 in error. The respondent stated that once this error was raised with them the matter was corrected. |
Findings and Conclusions:
The complainant submits that he received a statement of his core terms which contained false or misleading information. The respondent accepts that the complainant was issued with a contract for a new starter in 2019 in error. The respondent stated that once this error was raised with them by the complainant the matter was corrected and there was no consequence for the complainant who was assured that his terms and conditions remained the same as they had always been both before and after the 2015 transfer. Accordingly, I declare this claim to be not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00033453-007 | 31/12/2019 |
Summary of Complainant’s Case:
The complainant submits that he has been discriminated against by his employer on grounds of disability. There is also a claim of victimisation and of failure to provide reasonable accommodation for a disability. This complaint has two different components regarding disability: 1. Despite being out sick, he always expressed the wish to return to work. Although the occupational therapist stated that his disability is very limiting, the company never made any efforts to accommodate him, until 2019, when his solicitor contacted them. 2. Because of his disability and being out sick, and the failure of the company to address his status with them a number of problems arose that affected the complainants mental health and the financial wellbeing of his family. The complainant submits that the respondent company never clearly defined his status and because of that he was disqualified to apply for social welfare for years, and the company was not paying him either. He also submits that he was never informed of the possibility to be offered redundancy. |
Summary of Respondent’s Case:
The complainant was not discriminated against on ground of disability or otherwise. |
Findings and Conclusions:
The complainant submits that he was discriminated against on grounds of his disability. There is also a claim of victimisation and of failure to provide reasonable accommodation for a disability. The respondent accepts that the complainant is a person with a disability for the purpose of the act and also accepts that it is on notice of that disability. I am satisfied from the evidence adduced that the complainant is a person with a disability within the meaning of the act. The issue for decision by me is, whether or not, the respondent discriminated against the complainant on the ground of disability in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 and whether the respondent failed to provide the complainant with reasonable accommodation for a disability contrary to Section 16 of the Acts. I must also make a decision on the victimisation claim. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)….” Section 6(2) of the Acts defines the discriminatory ground of disability as follows – “(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"). Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of disability. Reasonable Accommodation Section 16 (3) of the Employment Equality Act sets out the obligation on employers with regard to reasonable accommodation as follows: “(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties. (b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates. (c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.” This provision was further emphasised and interpreted by the Supreme Court in the case of Nano Nagle School v Daly [2019] IESC 63, where, at paragraph 84, it was stated: “Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.” It is clear from the above that the mandatory, primary duty on the employer under Section 16 (3)(b) is that they take appropriate measures, where needed in a particular case, to enable a person, with a disability, to participate and advance in employment unless these measures would impose a disproportionate cost burden. It is also clear from the Nano Nagle and many other cases, both before and since that case, that the main focus in relation to reasonable accommodation is on providing accommodations within the workplace, which will accommodate the return to work and will allow the fullest possible participation in the workplace of the returning employee, who has a disability. In A Store -and- A Worker EDA1629 the Labour Court found held: “As was pointed out by this Court in Humphries v Westwood Fitness Club and in A Worker v An Employer [2005] ELR 159 a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation.” The complainant when outlining his claim of discrimination stated that he had not been offered redundancy when he was aware that others had been offered redundancy. The respondent in reply to this stated that the complainants position was not made redundant and that his position was still in existence and that he continues to be employed by the respondent. In addition, I note that the redundancies referred to took place in 2015 and are well outside of the cognisable period of the complaint. The respondent advised the hearing that the complainant had been on long term sick leave since 2013 when he was employed by company A. The respondent advised the hearing that it had only taken over the company in 2015. The respondent stated that the complainant had been employed by company A and had transferred to company B in 2015. The respondent advised the hearing that the complainant had been on long term sick leave since 2013. The respondent went on to state that it had referred the complainant to the company Occupational Health specialist in 2019 to assess his suitability to return to work. The respondent advised the hearing that the complainant attended a medical capability meeting in October 2019 the outcome of which was that there was little likelihood of the complainants return to work within a reasonable timeframe and that there were no reasonable adjustments which could be made or alternative roles available for the complainant. Following this meeting the complainants employment was terminated due to ill health. The complainant had not at the time been consulted or involved in any discussion on possible accommodations or alternatives which would enable him to return to the workplace. The respondent stated that the complainants employment was terminated in October 2019 following which the complainant appealed the decision to dismiss and was successful in his appeal and so he was reinstated. The complainant advised the hearing that the respondent had not made any efforts to provide him with reasonable accommodation or to find him a suitable alternative position before making the decision to dismiss him. The respondent stated that the matter of reasonable accommodation was taken into account when the complainant appealed his dismissal and so the dismissal was overturned, and he remains in the respondents employment. The respondent at the hearing stated that the person who had made the initial decision to dismiss had failed to give adequate consideration to what if any reasonable accommodations could be made to enable the complainant to continue in employment. The complainant advised the hearing that he was willing to return to work but acknowledges that he can only walk with the aid of two crutches and not for periods longer than 30 minutes. In addition, the complainant stated that he had asked the respondent if there were any security jobs which would entail a minimum amount of waking but that he could sit and watch screens which many security men do. The respondent advised the hearing that it had subsequently provided the complainant with a list of available positions. The complainant who is Polish stated that his English is not very good, and he advised the hearing that he felt that this was not a genuine offer from the respondent as the positions were management positions and supervisor positions in different locations around the country. The complainant stated that he had been employed as a cleaner and knew that he would not be considered for a management position given his poor level of English, but he stated that he would be able for a security job where there was not too much walking involved and where he would not have to engage in heavy lifting. The hearing was conducted with the assistance of a Polish Interpreter. The complainant at the hearing came across as a genuine person who was willing to work and was asking for an opportunity to return to work. The complainant outlined how he had been left in severe financial difficulty due to not being able to work and stated that he was unable to access social welfare as the company had failed to clarify his position with them despite several attempts by him to obtain answers from them. The complainant stated that this experience had a terrible effect on his mental health and on his family. The complainant advised the hearing that a number of his colleagues had been given the opportunity to apply for voluntary redundancies at the time of the transfer in 2015 but he stated that he had received no correspondence in this regard and was never given an opportunity to apply for these redundancies. The complainant stated that the company had forgotten about him as he was out on sick leave. The respondent advised the hearing that the complainant is still an employee and is still on sick leave and added that it will look at what accommodations can be made once the complainant indicates that he is in a position to return to work and is deemed medically fit to do so. The respondent at the hearing stated that it is open to the complainant to have himself medically assessed at any time and to propose what reasonable accommodations could be made to enable him to return to work and in what position. The complainant agreed that he continues to be employed by the respondent having been reinstated after his dismissal in 2019. The complainant also stated he was not aware and was never told that he could have himself medically assessed for work and he believed that the only medical assessment which would be accepted was one where he was referred by the respondent. The complainant remains on sick leave without pay and stated that he wants to return to work as he is in severe financial difficulties as a result of being out of work. Having regard to all of the evidence adduced here, I am satisfied that that no serious or genuine efforts were made to try and accommodate a return to work for the complainant at the time of the dismissal and reinstatement or since then even though he has expressed a willingness to return to work. I am satisfied that the complainant must be compensated for this failure to provide him with reasonable accommodation. In making my award however I am cognisant of the fact that the complainant appealed the decision to dismiss, was successful in his appeal and was reinstated and since then has continued to be employed by the respondent thus negating the effects of the dismissal. However, it is also clear from the evidence adduced that no efforts were made to bring him back to work or to conduct an adequate assessment of what reasonable accommodations might enable him to return to work, as a cleaner or to another position within the respondent organisation bearing in mind that it should be ‘reasonable’. I also note that the respondent is a very large organisation with many employees and many opportunities. As the complainant continues to be employed by the respondent there is still an opportunity for the respondent to conduct an assessment of what reasonable accommodations would be required to enable the complainant to return to work. In making my award I am cognisant of this fact. Having regard to the totality of the evidence adduced in relation to this matter I am satisfied that that an award of €5,000 is appropriate compensation for the failure to provide the complainant with reasonable accommodation for his disability given the circumstances and given the fact that the complainant continues to be employed by the respondent. Victimisation Victimisation is defined in section 74(2) of the Employment Equality Act as follows: “For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or employer occurs as reaction to – (a) A complaint of discrimination made by the employee to the employer, (b) Any proceedings by a Complainant, (c) An employee having represented or otherwise supported a Complainant, (d) The work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) An employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or (g) An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: - 1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act), 2. The Complainant was subjected to adverse treatment by the Respondent, and, 3. The adverse treatment was in reaction to the protected action having been taken by the Complainant. Having regard to the Labour Court decision above, I am satisfied that the complainant has not established that he was subjected to adverse treatment as a reaction to his having taken a protected action. Accordingly, I am satisfied that the complainant was not victimised by the respondent. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I am satisfied from the totality of the evidence adduced that the complainant was discriminated against by the respondent on grounds of his disability in respect of a failure to provide him with reasonable accommodation for his disability contrary to section 16 of the Acts and I order the respondent to pay him €5,000 in compensation for the failure to provide him with reasonable accommodation, and I am satisfied that the complainant was not victimised by the respondent in accordance with section 74 (2) of the Acts. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00033453-008 | 31/12/2019 |
Summary of Complainant’s Case:
The complainant submits that he did not receive any Redundancy Payment, but many other people did not either. He submits that he was never even informed about the possibility of receiving one in the first place and that he was overlooked during the redundancy process. |
Summary of Respondent’s Case:
The respondent advised the hearing that the complainant did not receive a redundancy payment as his position was not made redundant and he continues to be employed by the respondent. |
Findings and Conclusions:
The complainant advised the hearing that other employees had been offered the opportunity to apply for voluntary redundancy following the transfer in 2015 but that he received no information in respect of the voluntary redundancy process. There was some discussion at the hearing as to whether the respondent cleaning Company B was responsible for these voluntary redundancy offers or whether it was the previous employer Cleaning Company A. It is clear from the documentation provided that the transfer and the associated redundancies took place in March 2015 and that the within claim which was submitted in December 2019 has been submitted well outside of the time limits allowable under the act . Accordingly, I am satisfied that this claim was submitted outside of the time limits allowed and I declare this claim to be not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
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-00033453-009 | 31/12/2019 |
Summary of Complainant’s Case:
The complainant submits that his current/new employer did not ensure that his terms and conditions transferred from my previous employer He submits that he was not even informed of the transfer and was never told that Company B would be his new employer. While out sick, he was informed about the transfer from other employees. |
Summary of Respondent’s Case:
The respondent submits that the complainant was notified of the transfer by them and submit s that that the complainants terms and conditions transferred from his previous employer cleaning company A to the respondent cleaning company B. |
Findings and Conclusions:
The respondent prior to the hearing provided a copy of a letter which issued to all employees including the complainant in February 2015. The complainant advised the hearing that he was aware that the company was transferring as he had been told by his previous employer but that other employees had been offered the opportunity to apply for voluntary redundancy following the transfer but that he received no information in respect of the voluntary redundancy process. There was some discussion at the hearing as to whether the respondent Company B was responsible for these voluntary redundancy offers or whether it was the previous employer Company A. The complainant submitted that the respondent only confirmed his transfer in 2019. The respondent advised the hearing that a letter had issued to the complainant in February 2015 and that correspondence ensued between the complainant and respondent over the next few months with the respondent referring the complainant for an Occupational assessment which took place in September 2015. The complainant claims that he did not receive the letter of February 2015 stating that he was transferring to the respondent B. Both parties agree that the complainant wrote to the respondent company B in May 2015 and that correspondence ensued between the parties resulting in the complainant being referred for medical assessment by the respondent in September 2015 and that correspondence took place between himself and the respondent in the period from March to September 2015. It is clear from the documentation provided that the transfer and the associated redundancies took place in March 2015 and that the claim which was submitted in December 2019 has been submitted well outside of the time limits and extended time limits allowable under the act . Accordingly, I am satisfied that this claim was submitted outside of the time limits, and I declare this claim to be not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
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-00033453-011 | 31/12/2019 |
Summary of Complainant’s Case:
The complainant submits that his new/current employer did not advise him in relation to the transfer . |
Summary of Respondent’s Case:
All employees including the complainant were notified of the transfer. The respondent prior to the hearing provided a copy of a letter which issued to all employees including the complainant in February 2015. |
Findings and Conclusions:
The respondent prior to the hearing provided a copy of a letter which issued to all employees including the complainant in February 2015. The complainant advised the hearing that he was aware that the company was transferring as he had been told by his previous employer but that other employees had been offered the opportunity to apply for voluntary redundancy following the transfer but that he received no information in respect of the voluntary redundancy process. There was some discussion at the hearing as to whether the respondent Company B was responsible for these voluntary redundancy offers or whether it was the previous employer Company A. The complainant submitted that the respondent only confirmed his transfer in 2019. The respondent advised the hearing that a letter had issued to the complainant in February 2015 and that correspondence ensued between the complainant and respondent over the next few months with the respondent referring the complainant for an Occupational assessment which took place in September 2015. The complainant claims that he did not receive the letter of February 2015 stating that he was transferring to the respondent B. Both parties agree that the complainant wrote to the respondent company B in May 2015 and that correspondence ensued between the parties resulting in the complainant being referred for medical assessment by the respondent in September 2015 and that correspondence took place between himself and the respondent in the period from March to September 2015. It is clear from the documentation provided that the transfer and the associated redundancies took place in March 2015 and that the within claim which was submitted in December 2019 has been submitted well outside of the time limits and extended time limits allowable under the act . Accordingly, I am satisfied that this claim was submitted outside of the time limits, and I declare this claim to be not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
Dated: 25/05/2022
Workplace Relations Commission Adjudication Officer: Orla Jones
Key Words:
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