Complainant

Respondent

Parties

Karen  McEvoy

Affidea Clinic Ltd

Representatives

  Self represented

Robin McKenna Ibec

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-00043396-001

05/04/2021

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-00043396-002

05/04/2021

The complainant stated that she was employed by Affidea Clinic Ltd from 22nd October 2018.  Her duties included arranging appointments for Public and Private Medical GPs and Consultants.   Her employment transferred from Affidea to Relatecare in August 2020. The complainant contends that less than 5 months after being transferred to Relatecare, the company Affidea rehired staff to do her job at a lower wage in the same office that she was working from in Waterford. The transfer was very stressful and upsetting at the time. The complainant stated that she received information from the WRC in or around March 2021 that the company was not entitled to transfer her employment to another company and then take on staff at a lower wage doing the same job.  In response to the respondent’s preliminary argument that she has submitted her complaint later than the 6 month time limit, she argues that the time limit should be extended due to reasonable cause as she had been making enquiries and did not receive the information in relation to her case until March or April 2021.   

The respondent raised a number of preliminary points.  The first relates to time limits.  As the complainant’s complaint was received more than six months after the transfer, it is submitted that it must be ruled out of time.  The second preliminary point is that the complainant’s grievance, being concerned with what happened after the transfer of undertakings, and the changes in the respondent’s staffing situation effectively has no relevance to the Regulations governing TUPE.

In relation to the case, background is as follows:

Affidea is a Medical Diagnostic company with 12 clinics in Ireland. Affidea operated a contact centre in three locations in Ireland to facilitate patients booking scans. Contact Centres were established and located in Dublin (2006), Waterford (2018) and Letterkenny (2019).

In January 2020 a decision was made by the Operations Manager to outsource the three Contact Centres to Relate Care. Relate Care is a healthcare communications consultancy that provides patient access and patient engagement solutions to healthcare organisations around the world. Relate Care support healthcare organisations seeking to optimize their contact centre through patient access and appointment scheduling. Relate Care is based in Waterford.

In March 2020, the contact centre in Letterkenny closed. The contact centre in Waterford closed in August 2020 and in September 2020 the contact centre in Dublin closed.

The Complainant was employed by the Respondent as an Appointment Centre Executive on 22 October 2018 until her employment transferred to Relate Care on 4 August 2020.

On 19 June 2020, a consultation meeting was held. All affected staff (eight in total) were invited. The consultation meeting was led by the HR Manager. The Complainant attended this meeting. The Complainant and the other affected employees were informed that the work undertaken in the Waterford Appointment Centre would be outsourced to Relate Care in line with TUPE regulations. The employees were also informed at this meeting that the consultation period would take place over the following four weeks, they were informed of their right to object to the transfer and that their continuity of employment would not be affected, there would be no legal, technical or economic implications owing to the transfer and that Relate Care would recognise all rights connected with the contracts of employment on the transfer.

A number of further consultation meetings were held in July. As part of the consultation process the employees were given the option to apply for an alternative role within the Respondent company instead of transferring. The Complainant did not apply for any alternative roles within the Company.

On 4 August 2020, six staff transferred to Relate Care with no loss of terms or conditions or change to tenure. Two staff applied for different roles available at that time and remained in employment with the Respondent.  On 26 September 2020, the Respondent informed the Complainant that an additional payment of €960 would be lodged to her bank account at the end of the month. The Respondent informed the Complainant that this amount would have to be returned as the payment has been made in error (due to a payroll administration error). The money was never returned to the Respondent. On the 25 November 2020, the Respondent again contacted the Complainant to ask for the overpayment to be returned but the Complainant did not return same.

In October 2020, the HSE opened a “mini” tender for a general practice (GP) direct access scheme for diagnostics across the National primary care setting to support additional routine diagnostic imaging on a temporary basis due to a second outbreak of COVID-19 which occurred in late 2020.

On 21 December 2020, The HSE formally notified the Respondent that it had been successful in winning the tender. The Respondent recruited four administrators to assist with this project, who were located in Waterford. The contracts offered for the four positions were fixed term for six (6) months. Two administrators commenced on 5 January 2021. The remaining two additional administrators commenced on the 23 January 2021.   Six Outbound Administrator positions were recruited for the Dublin Office over a period of May 2021 to August 2021. These were fixed term contracts for 12 months for the duration of the HSE Contract.

There was no permanent establishment of the Contact Centre in Waterford and the roles the complainant contends were the same as the role she carried out were different.

Regulation 10 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 sets out that a complaint that an employer has contravened the Regulations can be brought to the WRC for an Adjudication Officer to do one or more of the following: a) declare that the complaint is or, as the case may be, is not well founded; b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or c) require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but - I. in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and, II. in the case of a contravention of any other Regulation, not exceeding 2 years remuneration.

It is the Respondent’s position that no breaches of the Regulations have occurred. A genuine transfer situation arose, and the Respondent consulted with the Complainant in line with S.I. 131/2003, in particular with Regulation 8 of the S.I. Two months later, the Respondent won a tender with the HSE to take effect in January 2021. This contract required the Respondent to hire for roles that were significantly different to the role the Complainant held and the roles are no longer in place with the Respondent.

The Complainant has not proven how S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 has been breached and therefore her claim must fail. The Respondent respectfully requests that the Adjudication Officer so finds.

The purpose of the European Communities  (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) is to protect the rights of employees in the event that their employment is being transferred to another entity.  In this case, the complaint refers to the fact that the respondent took on other employees post the transfer. 

In relation to time limits for receipt of complaints under the Regulations, such time limits are governed by the Workplace Relations Act 2015.   Section 41 (6) provides:

(6) Subject to subsection (8) 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.

As the complaint was presented on 5th April 2021 and the complainant’s employment was transferred to the transferee company on 4th August 2020, the complaint may be deemed to be out of time, unless saved by Section 41 (8) of the Act which provides:

(8) 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 complainant offered as reasonable cause the fact that she was made aware in March or April 2021 that the respondent had breached the Regulations and that she could submit a complaint.                      I note the detailed submission of the respondent in this case which sets out above the chronological sequence of events which led to the complainant’s transfer of employment to the new entity.  This included consultation and no diminution of remuneration or loss of employment.  Aside from the fact that the complainant has failed to submit what Regulation(s) have been breached by the respondent, or any evidence in relation to same, I find that her complaint is out of time, and no objective reasonable cause to extend the time has been demonstrated.  I further find the complaint to be ill conceived and not well founded.

Transfer of Undertakings.  Out of time. Not well founded.