Complainant

Respondent

Parties

Noel  Barron

Superior Group Irl Limited

Representatives

Fiona Kelly Solicitors

Simon Gillespie B.L. instructed by Conor McLaughlin & Associates

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00042227-001

29/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042227-002

29/01/2021

The complainant Noel Barron commenced employment with Orbit Security Limited (hereafter, Orbit) on September 25th, 2014, as a security guard and his usual place of work was at the Letterkenny Institute of Technology (LYIT).

A hearing took place on March 2nd, 2022 and was adjourned on the basis that the parties might finalise an outline agreement between them reached on the day of the hearing. 

The matter was deferred until April 1st (although the nature and purpose of this deferral is a matter of controversy and requires further explanation which is below in the Findings and Conclusions).

This would normally give rise to two options in event of the resolution not being executed to the satisfaction of the complainant.

If the hearing had not been concluded it would then resume and hear any unheard evidence or submissions which had not been heard on the day.

On the other hand, if the hearing had concluded a decision would issue without the need for a further hearing.

In the event, and despite the fact that the resolution of matters between the complainant and the respondent was successful (in that the complainant was offered and accepted employment and continued to be employed by the respondent) it appears that the complainant contacted the WRC seeking a re-scheduling of the hearing of the same matter, and for a number of reasons this did not take place until January 18th, 2023.

At that point the complainant sought a continuation of the hearing of matters which had been heard on March 22nd, 2022.

The situation is further confused by the existence of parallel complaints against another company, a purported transferor in the alleged transfer of undertakings, Orbit Security (although no complaint was made under the Transfer of Undertakings Regulations).

Orbit did not attend the separate hearing of the complaints against it, although on the conclusion of the March 22nd, 2022, hearing it was clearly understood that the complainant would consider his options in relation to the possibility of proceeding to a further hearing against that respondent, Orbit Security.

As the Adjudication Officer who heard the case in March 2022, and on the basis of my belief (shared by the respondent) that the hearing had been concluded on that date that I invited submissions from the parties as to what, if anything remained to be heard.

Obviously, ‘what, if anything remained to be heard’ could only properly refer to material which was available and ready to be heard on the date of the first hearing, but which for some reason was not.

If the hearing had concluded on that day, new information or evidence that arose subsequently could not, on the facts in this case, provide a basis for re-scheduling a hearing.

Accordingly, having reviewed the submissions of the parties made after the January 2023 hearing I decided to proceed to issue a decision on the complaints.

I set out below a summary of the parties’ submissions on the procedural issue, as well as my conclusions on the request for a resumed hearing, and then my decision on the substantive complaints.

Preliminary/Procedural matter

As noted above, the Adjudicator invited submissions from the parties as to what, if anything remained to be heard, and whether the hearing needed to be continued.

A submission was received from the complainant ‘s solicitor in response to the request from the Adjudicator on why it was necessary to resume the hearing.

She noted that the matter was last before the WRC on March 2nd, 2022, and adjourned to April 1st, 2022, for review. The complainant informed the Commission by e-mail on March 30th, 2022, he wanted to proceed with his claim against this respondent.

In the submission she refers to correspondence which had been referred to at the hearing and which she referred to on various dates after the hearing. It was received on July 8th. Other correspondence she sought from the respondent has not been received.

Specifically, there is one key piece of correspondence in which is alleged to show that the complainant’s employment had been terminated by a previous employer, who is seen by the complainant as the transferor in respect of a transfer of undertakings. 

The submission also referred to events which took place in December 2019, January 2020 April, and September 2020.

There was also a legal submission on the law related to TUPE.

Substantive Submission

On January 16th, 2020, the complainant received an e-mail from Orbit Security stating that it was merging with a new company.  The following day, the complainant was working in LYIT and saw the Operations Manager of Orbit Security Limited. They discussed to a meeting about the merger of Orbit Security Limited with Superior Group.

Martin Hilferty had arrangedameetingwithOrbit employeesinthe LYITon MondayJanuary 20th, 2020,at 2pm.Thecomplainant askedMr. Hilfertyaboutthat meetingaboutthemerger and who would beresponsible for the payment ofmoniesdueto him.

There was a heated exchange between them in the course of which the complainant says that Mr. Hilfertyslapped him on the back in a very dismissiveway,telling him to "doyourjob". He turnedtowardsthe complainantsaying, "you are going to be sacked".

On February 5th, 2020, the complainant received an e-mail from Orbit stating that "the investigation regarding the incident [on January 17th] is ongoing".

On March 12th, 2020, schools, colleges, and public places were closed due to Covid -19.

On April 3rd, 2020, the complainant received an e-mail from Orbitconfirmingthat as of the April 1st, 2020,it was joining forces with Superior Group and that nothing would bechanging other than the name on pay slips, and that a new contract of employment would be issued.

On September 2nd, 2020, the complainant attended a meeting with Chris Tierney and Conal Kelly of Superior in their office and he raised a number of questions, and a follow up meeting was arranged for September 9th, 2020.

The following day the complainant met Mr. Hilferty (Orbit) who gave him a letter of redundancy.  The complainant was supposed to meet with Chris Tierney of Superior Group on September 11th, 2020, but this did not happen. When the complainant contacted him he said he forgot about it and would reschedule it.

The complainant followed up on September 15th, 2020, to Superior group with questions but did not receive aresponse nor from Orbit.

The complainant's solicitor wrote to Orbit and Conal Kelly and Superior Group Ireland Limited on October 6th, 2020, seeking clarification of the complainant's employment status, but received no response, and the matter was referred to the WRC.

In its submission the respondent has said that the complainant was dismissed by Orbit Security Limited on March 30th, 2020. However, he did not receive any such letter of termination.

The respondent’s submission includes a ‘Tender for the Provision Security Services to LYIT-Tender Response 23rd of January 2019 at Schedule of E, Correspondence regarding change of Company responsible for Servicing the Contract from the 1/4/2020 at "El" - e-mail from Orbit Security confirming charge dated the April 28th, 2020, which states that

 "We are delighted to announce that Orbit Security Limited will be teaming up and working in conjunction with Superior Group IRL Limited. The effective date for this change will be the 1st of April 2020" This will have no impact on the current services we provide to you".

Thecomplainant relies onthee-mails(submitted in evidence) confirming thatSuperiorSecurity IrlLimited were servicing thecontractfromthe23/04/2020 (1/4/2020*datedthe24thofMarch2020confirmingthat SuperiorSecurityIrlLimited wasnowinvolvedinajointventurewithOrbitSecurityLimited whichhad previously  providedsecurityatLetterkennyIT.

Evidence of Noel Barron

The complainant give evidence on affirmation.

In relation to the letter that has been referred to by the respondent, which it says was issued on March 30th, 2020, and which purported to dismiss him he said that the first sight of this he had was when he saw reference to it in the respondent’s submission on Fairbury 24th.

The college in which he worked closed on March 23rd, 2020, and this is the date given as the termination.

He stated that he got a call on September 1st about the possibility of work resuming and he met two representatives of Superior, the current respondent.

One of his former colleagues had seen Orbit employees continuing to provide services. But in September he expected that he would go back as normally happens to conduct night patrols which was his usual pattern of work.

In response to cross-examination, he confirmed that before March 20th, 2021, there had been issues related to annual leave payment of wages.

Between April and September 2020, he had no dealings with Superior. He described the meeting on September 10th when he met Martin Hilferty which was arranged to resolve outstanding issues. At this meeting Mr. Hilferty ‘threw’ the letter at him which made him redundant.

A colleague spoke to him in September asking him whether he had been told of an induction event and when he rang Chris Tierney and he was told to come in to meet on the following day but in the course of that meeting he was told that the position was no longer available.

Preliminary/Procedural matter

On the preliminary point, the respondent rests on the previous evidence given at the initial hearing on March 2nd, 2022, and there is no further evidence to be heard.

It is the strong submission of the respondent that the matter should proceed to a decision, without the need for any further hearing or evidence.

The complainant submissions on the procedural issue submissions refer particularly to the letter of March 30th 2022; the contract with LYIT; the relationship between the respondent and Orbit Security Limited; the email from Michael Mallet dated April 3rd  2020; the email from Orbit of April  28th, 2020; the letter from Dore & Company Solicitors and the switch of clients from Orbit Security Limited to the respondent.

These are all matters in respect of which detailed evidence was given at the initial hearing on March 2nd, 2022.

The complainant and respondent had the opportunity to test this evidence via cross-examination and did so thoroughly.

In respect of the alleged "new" evidence which appears to include the registration of the business name, a Facebook post; a CRO search and the respondent address; these are all matters which the complainant was aware of, or ought to have been aware of, at the time of the initial hearing.

Therefore, it would be unfair and contrary to all fair procedures and natural justice to allow the complainant to adduce further evidence almost a year after the hearing has taken place simply because he has had further time in which to carry out further investigations.

It is long established and settled legal procedure that a party should adduce all the evidence on which he or she intends to rely before the close of his or her case (R. v Frost (1839) 4 St Tr NS 85; R. v Rice (1963) 47 Cr App R 79; R. v Milliken (1969) 53 Cr App R 330; R. v Lee [1976)2NZLR171.).

Although a Court has discretion in respect of re-calling witnesses and evidence, this is a discretion which should be used sparingly and only where in the interests of justice to do so. It is further submitted that such circumstances which permit the re-calling of witnesses occurs in practice most often where new evidence has come to light which wasn't available to the party seeking to re-call evidence at the hearing of the action and where such evidence fundamentally changes or alters a party's case.

The complainant has failed to prove that any such "new" evidence of this nature is involved here. What is submitted by the complainant is evidence which was available to him at the first hearing, and which should have been adduced then, were the complainant intending to rely on same.

Therefore, the WRC may only take into account facts which have been established via evidence in the determination of a contentious matter such as the dispute at hand.

If it refuses to allow a further hearing to take place (which the respondent strongly urges in line with fair procedures and natural justice), then it is respectfully not entitled to take into account any information contained in the most recent submissions of the complainant which have not been given in evidence.

The complainant must prove, on the balance of probabilities, that a transfer took place. The evidence given by Ms. Dullaghan at the hearing on March 2nd, 2022, was that although initial discussions of a merger took place, these were never formally followed through and no transfer took place.

In any event, the respondent again queries the relevance of the Transfer of Undertaking argument in circumstances where the evidence given by Ms. Dullaghan was that, as far as the respondent was made aware by Orbit Security Limited, the complainant had been dismissed on March 30th, 2022, prior to the commencement of the contract with LYIT.

The evidence was that at no point was the respondent aware that the complainant was, or could have been deemed to be, a lawful employee who was still in employment and who should be offered a position.

The complainant has failed to address this point. In the circumstances, it is submitted that the issue of any Transfer of Undertakings is a red herring.

It is not satisfactory that the matter is continuing when the respondent, in purported settlement of the dispute, agreed (without any admission of liability) to employ the complainant in order to rectify the alleged wrongs of Orbit Security Limited.

Orbit Security Limited continues to operate an independent business, wholly unconnected to the respondent. Orbit Security Limited has failed to attend for a and this should not be such that the respondent is held liable or asked to account for the actions of Orbit Security Limited.

This complaint is also lodged as against Orbit Security Limited, and the respondent submits that Orbit Security Limited is the correct respondent.

Substantive Complaint

The respondent is a limited liability company with its registered offices in Carrickmacross, County Monaghan. The respondent carries on the business of the provision of commercial security.

The complainant was never employed by the respondent and no employment relationship existed between the parties. Therefore, the complainant cannot claim any form of dismissal and/or unfair dismissal or redundancy as against the respondent when he was never within the employment of the Respondent.

It is further submitted that the complainant was dismissed by Orbit Security on March 30th, 2020. The respondent did not commence itscontractualobligationsatLetterkennyInstituteofTechnology(“LYIT”)untilthe1stofApril2020.

Therefore, at no time did the complainant carry out any employment duties or obligations at LYIT during the period in which the respondent was responsible for security at the said premises.

Consequently, given that the complainant lodged his complaint with the WRC on January 29th, 2021, the complaint is ‘out of time’.

In April 2020 Orbit Security ceased trading. The respondent approached a number of its former clients and entered into agreements with those clients whereby the respondent agreed to provide security  services to them.

Orbit did not have any involvement in these agreements between this respondent and those clients and any agreement entered into by the respondent did not involve Orbit.

At no time was an agreement entered into by Orbit and the respondent in respect of any transfer of undertaking or any other business activity, or at all. The agreements entered into between the respondent and Orbit’s former clients do not constitute a transfer of undertaking within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and therefore the Regulations do not apply.

ORBIT Security had a contract with LYIT and when it ceased trading, it was agreed between LYIT and the respondent that the respondent would assume and fulfil the responsibilities and obligations previously fulfilled by ORIBIT Security on the LYIT campus. (The agreement was submitted in evidence).

From then, it was within the sole discretion of the respondent to employ its own employees at the LYIT campus. As such, it was made known to the respondent that the complainant had previously been employed at the campus and carried out security duties on behalf of ORBIT Security.

It is submitted that the complainant was dismissed by Orbit on March 30th, 2020. The respondent did not commence its contractual obligations at LYIT until the 1st of April 2020. Therefore, at no time did the complainant carry out any employment duties or obligations at LYIT during the period in which the respondent was responsible for security at the said premises.

On this basis, Mr. Chris Tierney, Security Manager with the respondent, invited the complainant to attend a job interview with Mr. Tierney and Mr. Conal Kelly, Managing Director Northwest at the Superior Group Office on September 3rd, 2020. It was explained that the invitation was to a job interview in respect of the role previously carried out by the complainant on behalf of ORBIT Security at the LYIT campus.

Following the interview, a follow-up interview was arranged by the respondent with the complainant, but it did not take place and was not rescheduled.

Therefore, the complainant was never formally employed, nor was ever formally offered a contract of employment, by the respondent and at no time did the complainant carry out any tasks or duties on behalf of the respondent which could be considered to be indicative of any employment arrangement.

In his complaint form, the complainant has detailed an encounter with Mr. Martin Hilferty ORBIT Security whereby he was allegedly handed a redundancy letter on or about the 10th of September 2020.

The respondent knows nothing about this encounter and submits that this has nothing to do with any complaint against it. Furthermore, the respondent knows nothing about the employment relationship between the complainant and Orbit.

Therefore, the respondent did not at any time hereto dismiss the complainant from his employment or make him redundant given the fact that the respondent was not at any time hereto the complainant’s employer.

The complainant knows nothing of the alleged email that was sent from ORBIT Security to him stating, that his employment would continue as normal under the management of the respondent. At no time did the respondent represent to Orbit and/or to the complainant that it would employ the complainant and did not do so

Therefore, it is submitted that the respondent is not responsible for any assurances and/or representations made by ORBIT Security to the complainant in the alleged email, or at all.

In light of the above, it is submitted that the complaints are not well-founded, and the complainant has failed to establish that he was, at any time employed by the respondent. It is submitted that the said complaint is, in any event, statute barred in circumstances where the complainant was dismissed prior to the respondent having commenced its contractual obligations at LYIT.

It is respectfully submitted that where no employment relationship existed as between the complainant and the Respondent, the respondent cannot be held to have unfairly dismissed the complainant and/or made the complainant redundant.

Evidence of Fiona Dullaghan.

Ms. Dullaghan gave evidence on affirmation.

The witness is a Director of the respondent company and manages the office on a day-to-day basis. Her responsibilities include administration and HR, and she has been in this role since June 2008.

In respect of the relationship between Orbit and her company she stated that in late in 2019 the respondent had been approached by Orbit with a view to a joint venture and was approached again in March 2020.  However, nothing ultimately came of this, and it was not concluded. There was no contract, or memorandum of understanding or other agreement.

In relation to the contract with LYIT, she said that Orbit had held the contract and then had difficulty fulfilling it due to a problem with its compliance licensing. 

LYIT asked for proof of a joint venture solely for the purposes of avoiding procurement requirements as the contract with Orbit had another two years to run.

In March and April as the Covid pandemic began to take effect the college was closed and there was only a need for one person on site

In response to a question the witness said she did not know when Orbit lost its licence; it could have been in March but was definitely gone in April. She also confirmed that the description of the relationship as a joint venture was solely to secure the contract with LYIT.

She also confirmed that she was told by Orbit that the complainant’s employment with that company had been terminated at the end of April.

Preliminary Procedural Matter

The context for this preliminary procedural issue is set out briefly in the ‘Background’ section above. It is not strictly speaking a preliminary matter at all, but it needs to be considered and addressed in the context of the complainant’s seeking to have a further hearing in the matter, as it is a preliminary to that.

As noted above a hearing took place on March 2nd, 2022, and as that hearing was concluding a suggestion emerged that the respondent might consider reaching agreement with the complainant about the possibility of employing him, even though he had not previously been employed by the respondent.

This occurred at the end of the hearing when all of the evidence had been heard, both oral evidence and by way of submission.  The hearing was then adjourned on the basis that the parties might resolve matters between them with a review date of April 1st.

It is possible, but scarcely credible that the complainant and his solicitor were in any doubt about the purpose of this deferral.

It was to see whether the proposed engagement of the complainant by the respondent (which denied any obligation to the complainant) could be satisfactorily concluded.

In the event it was, and evidence was submitted about the complainant’s employment with the respondent which has worked out well.

A related issue at the end of the March 2022 hearing was whether the complainant intended to request a further hearing against a different respondent; Orbit Security which had been his previous employer and had not attended the hearing.

This was, of course a matter entirely for the complainant, but the understanding at the end of the hearing was that if the arrangement with Superior worked out that would only leave his complaint against Orbit to be dealt with.

Despite all of this, the complainant somewhat inexplicably contacted the WRC seeking a re-scheduling of the hearing against this respondent, and for a number of reasons this did not take place until January 18th, 2023.

At that point the complainant inexplicably sought a continuation of the hearing of matters.

The situation is somewhat confused by the existence of parallel complaints against the purported transferor (Orbit) in the alleged transfer of undertakings (although no complaint was made under those regulations), and which was scheduled for the same session.

That respondent (Orbit) did not attend the hearing and on the conclusion of the hearing it was understood that the complainant would consider his options in relation to the possibility of a further hearing against that respondent.

As the Adjudication Officer who heard the case in March 2022, and on the basis of my clear understanding that the hearing of all evidence and submissions had been concluded on that day I invited submissions from the parties on what, if anything remained to be heard.

In her submission the complainant’s solicitor says, by way of explanation of the decision to re-activate his request for a hearing.

The complainant informed the Commission by e-mail on the 30th of March 2022 he wanted to proceed with his claim against the respondent.

This too is scarcely believable.

A full hearing of the issues took place on March 2nd, 2022. The complainant gave evidence on affirmation and was cross examined as was another witness for the respondent. There was no indication on the day that there would be any other witnesses or evidence. The reference by the solicitor for the complainant to the March 2022 hearing as a ‘preliminary’ hearing is, at best disingenuous; there was nothing preliminary about it.

In other words, the hearing had concluded and the only issue that arose was whether the complainant would withdraw his complaint in the context of the settlement reached with the respondent, or failing that, a decision would issue.

The conversation about the possible settlement arose only at the conclusion of the hearing.

The only reference at the initial hearing in March 2022 to the possibility of a further hearing, as my notes of the hearing confirm, was against Orbit.

Indeed, in internal correspondence with the WRC in May when asked about a re-scheduled hearing I mistakenly assumed on the basis of how the hearing in March had ended that the hearing being considered for re-scheduling was against Orbit, as indicated at the hearing. (One is ADJ 32287, the other ADJ 32289).

Turning to the response by the complainant’s solicitor, while she understandably refers to evidence which she had difficulty getting copies of, in the normal course of events I would have issued my decision by now and that would not have been capable of being considered.

The respondent submission above summarises the ‘new’ evidence relied on by the complainant and notes that it was all known on the date of the first hearing and I share this view.

However, even that is to miss the point.

The issue is whether there was evidence or submissions which the complainant did not have an opportunity to present at the March 2022 hearing.

Even if new information came to the attention of the complainant after the date of that hearing, that does not constitute a basis for another hearing on the facts here, if all of the evidence and submissions that were available to her on the day of the hearing in March 2022 had been concluded. 

I find that to have been the case. The hearing proceeded to a natural conclusion and the discussion about his possible employment by the respondent only arose at that point.

The complainant is quite unjustifiably seeking to have a ‘second bite of the cherry’, which given the circumstances of his successful employment with the respondent must be regarded as lacking in insight to a quite extraordinary degree.

In any event, I find that the hearing concluded on March 22nd, 2022, and I proceed to give my decision on the substantive complaints.

Substantive decision

This is a matter that turns on whether the complainant was, at any time, an employee of this respondent. This is complicated by a number of factors.

There are two complaints: one of unfair dismissal and the other of redundancy.

The date on which the termination is alleged to have occurred is September 10th, 2020, and in relation to the redundancy at least this may be taken to refer to the exchange during which Mr. Martin Hilferty, who was at the relevant time an employee of Orbit Security is alleged to have ‘thrown’ a letter at the complainant and advised him that he was being made redundant.

Starting with this incident, it illustrates some of the unsatisfactory elements of the evidence, and of course this is hardly surprising as a key player, a respondent in a separate complaint, and specifically Mr. Hilferty, did not attend for the hearing of separate complaints against it.

Had it done so it could have answered a number of questions that would have been helpful in shedding light on aspects of this complaint and the general narrative, although whether they would have been determinative of the complaints against this respondent is another matter.

It is important to state that no complaint has been made under the Transfer of Undertakings Regulations, and while the complainant refers to it in the submission of January 31st, 2023, it did not feature at all in the original submission to the hearing in March 2022.

It seems odd that the complainant would introduce legal argument in respect of a complaint which he had not considered sufficiently relevant to actually make as part of his original complaint and to do so some ten months after the hearing.

Despite that, and (only in passing) I note that this point often arises, in particular in relation to sectors such as contract cleaning, catering and security where contracts come to an end and are put to tender again and this situation.

As noted, I am not required to make a finding on this, but it is not straightforward matter of every new contractor or newly issued contract meeting the requirements of the regulations.

In Ayse Suzen v Zehnacker Gebauderinigung Gmbb Krankenhasservice [1997] I.R.L.R 255  the (now) Court of Justice of the European Union (CJEU) was asked whether the Directive applied to a situation where an organisation, which had entrusted the cleaning of its premises to a first undertaking, then terminated that contract and entered into a new contract with a second undertaking for similar works without any concomitant transfer of tangible or intangible assets from one undertaking to the other, was subject to the Transfer of Undertakings Regulations 2003.

The school awarded the cleaning contract to the respondent with no associated transfer of assets such as: goods, equipment, employees, premises operating methods other than the contract to clean the school.

The CJEU held that owing to the fact that no transfer of tangible assets had taken place and the transferee did not take over a major part of the workforce, there was no “transfer” of an undertaking.

In reaching this decision the Court identified a number of criteria,

1) For the Directive to be applicable the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract.

2) The fact that the service provided by the old and new holders of a contract is similar does not necessarily support the position that an economic entity has been transferred.

An entity cannot be reduced to the activity it carries out. Its identity also comes from other factors, such as its workforce, its management staff, its buildings, the way in which the work is organised, its operating methods and the operational resources available to it.

The Court noted that the mere loss of a service contract to a competitor does not of itself indicate the existence of a transfer within the meaning of the Directive. In this case the previous contractor did not cease to exist on losing the contract and continues to trade. 

The decision in Suzen was followed by the Employment Appeals Tribunal in the case of Mary Cannon v Noonan Cleaning Limited and CPS Limited [1998] E.L.R 153.

But I return to the matter in hand and look first at the relationship between Orbit Security and this respondent, Superior Security.

While no evidence was heard on what exactly was going on between Orbit and Superior in late 2019 and up to March 2020 (as it was not relevant to do so) the respondent distanced itself from Orbit, and in particular the various assertions in communications from Orbit in January and April regarding some form of liaison between the companies.

The January letter from his employer, Orbit to the complainant specifically used the word ‘merger’ although the later communications were more oblique. Ms. Dullaghan’s evidence was that discussions about a joint venture were initiated in late 2019 and re-opened for a second time as late as March 2020.

This second phase must have been very brief. This is the very month, at the end of which Orbit ceased to operate the contract, but despite those discussions not having a successful conclusion the parties names mysteriously appear jointly on the covering note to the contract between Superior and LYIT some weeks later.

There is an element of seamlessness and speed about this which is difficult to reconcile with the respondent‘s vigorous dissociation from the position stated by Orbit.

Whatever communications difficulties arose between the parties, the version of the outcome described by the respondent to the hearing was, on the basis of the evidence which follows not shared by Orbit, which dispatched a number of communications to both its own employees and to its clients announcing its new collaboration with Superior.

The email to the complainant on January 6th, 2020, headed ‘merge’ admittedly refers only to being ‘in the process of merging’.

However, the email from Orbit to the complainant on April 3rd, 2020, states that Orbit had ‘joined forces with Superior Group’.

While this is hotly disputed by the respondent, and directly rebutted in Ms. Dullaghan’s evidence (and it is not clear what ‘joined forces’ might mean, or why the word merger was not used on this occasion) it is extraordinary that there should be such a divergence between the two parties as to the outcome of their discussions only a few weeks earlier, and which, presumably were a factor in the inclusion of Orbit in the covering note on the LYIT contract.

Then, despite having allegedly been sent a note terminating his employment earlier that same week on March 30th, the complainant is the first person to be named on the email circulation list on Friday April 3rd; suggesting that Orbit had overlooked or forgotten that it had dismissed him only on Monday of that same week.

More credibly, it indicates that the complainant was still an employee of Orbit on April 3rd and that his evidence of not having received the alleged letter of termination reflects the reality that he had not been dismissed on that date.

Then, there is a further letter from Orbit Security, this time to its clients, dated April 28th, 2020, which states that.

 "We are delighted to announce that Orbit Security Limited will be teaming up and working in conjunction with Superior Group IRL Limited. The effective date for this change will be the 1st of April 2020" This will have no impact on the current services we provide to you".

The respondent denies that it had anything to do with these communications, inferring, somewhat implausibly, that this interpretation of the situation by Orbit was simply an error entirely of its own invention.

That said, ‘teaming up and working in conjunction with’ could mean anything; it does not necessarily mean the creation of a corporate legal entity, and as noted, the omission of any reference to a merger is of some significance.

The final question that arises here is why the complainant, who according to the respondent in this case, had his employment terminated on March 30th by Orbit was the subject of a notice of redundancy some six months later by the same company.

As noted, the complainant disputes ever receiving the letter of termination in March which was produced in evidence and this adds further doubt to whether or not it was ever sent to him.

Why did Orbit feel the need to terminate the employment of the complainant for a second time if it had done this already on March 30th.

I take account of Ms. Dullaghan’s testimony to the effect that this respondent was told that the complainant’s employment had been terminated. This is evidence only of her having been told this, but whether it actually happened is seriously challenged by the above points and, such are the inconsistencies set out above it seems to me unlikely that it did.

In her evidence to the hearing, she said she did not know when it had been received (although she was not the recipient of it.)

It is also a remarkable coincidence that the date of the alleged termination this was the day before Superior was to take over the contract at LYIT.

The circumstances of the respondent’s acquisition of the contract at LYIT are also confusing. If it were simply a matter that Orbit lost the contract because they lost the relevant licence, as was submitted, and this was followed by the respondent’s acquisition that would be one thing.  And while this was the thrust of the respondent’s submission, it does not fully answer all the questions which arise.

The new contract with LYIT is clearly between this respondent, Superior only and the college. There is no other party named as being a party to the contract. Bizarrely, however, the cover page contains a note which reads.

Note: contract initially awarded to Orbit Security Limited who entered into a joint-venture with Superior Group Ireland Ltd and who from 01 04 2020 has agreed to service the contract previously agreed with Orbit security.

Quite what the purpose or meaning of this note, or why it referred to Orbit, is hard to fathom.

On the one hand it contains a reference to a company, which according to the evidence in the case was no longer compliant with PSA regulations to the point that it could no longer fulfill the LYIT contract, and yet on the other hand the contract was exclusively with Superior.

The respondent submitted that this was to evade procurement requirements, and if so, that is another matter that does not bear directly on these complaints.

But such suspicions and any speculation about what various events mean does not add up to evidence or proof that the complainant ever enjoyed a contract of employment with this respondent, which is critical to any determination of his complaints in this case.

As noted, the complainant’s solicitor has belatedly referred to the Transfer of Undertakings Regulations in her submission of January 2023, but I find that I am not obliged to make any finding as to whether a transfer took place as no complaint has been made to that effect.

The only complaints are those against this respondent which related to the termination of the complainant’s employment on September 10th, 2020.

There is much about the respondent’s evidence in this case that is unsatisfactory and stretches credibility in relation to certain aspects of the detail of the matter.

But no evidence was offered that the liaison (in whatever form it may have existed in the minds of the management of Orbit) that allegedly existed between the two entities was consummated to the point where the complainant became an employee of Superior.

His direct evidence was that he had no dealings with Superior between April and September. I find that he was not at any time an employee of the respondent.

It is easier to discern, on the basis of the evidence in this case insofar as it relates to Orbit, (and I do accept that the respondent is only required to answer for itself, and not for Orbit), that the complainant appeared to remain an employee of Orbit.

Among the decisive considerations in reaching that conclusion are the actions of Mr. Hilferty, on September 10th, 2020, in purporting to make the complainant redundant.

While this, and the April 3rd email to employees, (and to some extent the email to clients of April 28th which suggested that Orbit was still a separate trading entity, whether or not it was trading and regardless of its relationship with Superior) further contradicts the alleged termination of the complainant’s employment in March.

Nonetheless, the precise position regarding that is a matter to be determined between him and Orbit, and not this respondent, Superior Security.

As already noted, there is no complaint under the Transfer of Undertakings regulations.

In conclusion I find that the complainant did not at any stage have a contract of employment with the respondent and therefore his complaints relating to the termination of that employment are not well-founded.

For the reasons set out above complaints CA-00042227-001 and 002 are not well founded and not upheld.

Unfair Dismissal, Redundancy.