Complainant

Respondent

Parties

Catherine  Duncan

Ballymun Regional Youth Resource

Representatives

Mr Darach Mac Namara BL, instructed by Mr. Mark Dillon, Dillon Geraghty & Co Solicitors.

Board of Management members.

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-00049895-001

26/04/2022

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-00049895-002

26/04/2022

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

CA-00049953-001

27/04/2022

The Complainant was employed as a Youth Worker by the Respondent from 13th November 2003 until 31st December 2021.

This complaint was received by the Workplace Relations Commission on 26th April 2022.

The Redundancy Complaint against BRYR

1.1          The complainant commenced employment with BRYR on the 13th November 2003 and a written contract of employment appears at page eight of the attached booklet.

1.2          On the date of her dismissal from BRYR in 2021, the complainant was earning €4064.58 gross per month.

1.3          BRYR is a registered charity that provides services to young people in the Ballymun area of Dublin. Its stated mission is to “empower young people from the Ballymun region to reach their full potential, by putting in place a range of resources that will support them to make a happy, healthy and successful transition to adulthood, and promoting health, well-being and resilience at all stages of their development”. Amongst the services provided by the first-named respondent include drop-in spaces for youths that provides a variety of activities and experiences, youth clubs, counselling, digital arts and IT workshops, and the staging of events including a Pride event, a Halloween event and an International Women’s Day event. The complainant was a youth worker employed on BRYR’s Outreach Team. This was an outreach programme that engaged with 10–24-year-olds on the streets rather than in a conventional youth work setting. The youth workers on the complainant’s team sought to engage with these young wherever they were, whether that was on the streets, in the local parks or shops. The programme involved the youth workers making contact with young people and building relationships with them over a period of time with a view to providing insight into their needs and goals are and then supporting them in taking action to meet those needs and goals.

1.4          BRYR is primarily funded by the Department of Children Equality Disability Integration and Youth through the City of Dublin Youth Services, Dublin City Council and the Health Service Executive.

1.5          Prior to 2020, the complainant worked for BRYR without issue. However, during the course of 2020 and 2021, her superior, Angela Birch, had numerous interactions with members of BRYR’s management which confirmed its view that there was no longer a need for the complainant’s team. In particular, Ms Birch was told at meetings on the 17th May and the 1st June 2021 that the outreach team members were suffering from “burnout” and would be better placed somewhere else and that they no longer fitted into BRYR’s model and the vision that the organisation had for itself.

1.6          At a meeting in July 2021, BRYR’s intention to have the complainant and her youth outreach co-workers form a standalone team that was separate from BRYR was explored as can be seen from the minutes of the meeting dated 28th September 2021 which appear at page twelve of the attached booklet. During the course of that meeting, Geraldine Comerford, the complainant’s manager, stated to Ms Birch that BRYR was “in full favour of the team moving for the survival of outreach”. It was also stated at the meeting that it was hoped that the team would be able to maintain its closeness and relationship with BRYR after the move. The complainant was happy with this proposal because she was of the view that she and her team would be transferred together to a new employer so as to continue their work for that new employer in a new setting. She was also happy to move on the strict understanding that all of her employment rights and obligations with BRYR would be preserved post-transfer.

1.7          At follow up individual meetings with some of the staff namely, Angela Birch, Mark Davis, Jimmy Bell and Catherine Duncan on the 27th October 2021 they were asked whether they wanted to transfer their employment to a new entity to be established and funded by the HSE. They replied that they wanted to transfer in circumstances where BRYR had made it clear that the team no longer fitted into its plans.

1.8          On the 26th November 2021, Ms Birch was asked into Ms Comerford’s office. The complainant was handed four letters of dismissal addressed to Tania Rey, Mark Davis, Mark Sutton and Jimmy Bell of her Outreach Team. Ms Comerford told Ms Birch that the funding for the team was not forthcoming for 2022 and so this was a necessary step. Ms Birch was further informed by Ms Comerford that, since BRYR’s legal advice was that they were not obliged to transfer their employment to the new entity, and that, consequently, there was not going to be a transfer of undertakings. Instead, each of the four BRYR employees would be dismissed with effect from the 31st December 2021 and could commence employment with the new entity thereafter if they so wished. Ms Birch was then informed by Ms Comerford that if she and the complainant wished to resign and follow the rest of the team out of BRYR, they would need to inform her.

1.9          On the 16th December 2021, Ms Birch was telephoned by Star’s Katy McAndrew who informed her that Star would be happy to take on all six members of the team even though BRYR had refused to consent to this move being treated as a transfer of staff pursuant to the 2003 Regulations.

1.10 As a consequence of the foregoing, the complainant resigned from her employment with BRYR on the 21st December 2021.

1.11      The complainant commenced employment with Star on the 10th January 2022. On the 2nd March 2022, the complainant’s SIPTU representative wrote to BRYR referring to the fact that BRYR had refused to entertain a TUPE transfer to Star on behalf of his member, which letter appears at page fifteen of the attached booklet. On the 3rd March 2022, her trade union lodged a claim for a redundancy payment as against BRYR using the RP77 form which appears at page sixteen of the attached booklet. On the 11th March 2022, BRYR’s representative emailed the said union representative indicating that BRYR had now decided to agree to transferring certain staff members to Star.

1.12      Section 7(2) of the Redundancy Payments Act 1967 which provides as follows:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

1.13      The complainant’s entitlement to a redundancy lump sum in circumstances where she resigned is based on section 9(1)(c) of the Redundancy Payments Act 1967 which provides as follows:

For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if the employee terminates the contract under which he is employed by the employer […] in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer’s conduct.

1.14      In McCann v Vantage Wholesale Ltd (RP253/2001) the Employment Appeals Tribunal said that the word “conduct” in the above provision did not “mean conduct which is necessarily blameworthy but conduct that can be looked at factually”. In this case the Tribunal held that the claimant, “in terms of the law of contract”, was entitled to treat the company’s action in changing the nature of his employment as a “repudiation” of his contract of employment.

1.15      It is submitted that BRYR’s conduct here falls squarely within the type of conduct envisaged by section 9(1)(c). Initially, it was proposed by BRYR that the complainant’s employment, together with that of her colleague, Angela Birch, be transferred to a new standalone entity. The complainant was told that a meeting regarding the proposed transfer would take place with a member of the BRYR Board. However, the meeting never happened. Instead at further meetings in the Autumn of 2021, the complainant was asked to confirm, which she did, whether she would be happy to mover her employment to a new entity in circumstances where the Outreach Team and its work no longer formed part of BRYR’s plans. Ultimately, however, on the 26th November 2021, she was effectively informed that the Outreach Team was no more with the core of the Team to be dismissed with the result that she could resign if she wished to follow them in taking up with the new entity, which by this point, had been confirmed as Star.

1.16      It is submitted that BRYR’s conduct, as described above, constitutes conduct which left the complainant with no choice but to resign; (a) the complainant’s colleagues were dismissed in an almost summary manner, (b) BRYR had resiled from its promise to transfer all six members of the team to a new entity under the 2003 Regulations, and (c) the complainant had been given an ultimatum to either resign or stay on with BRYR without the very team that allowed her to work that role.

1.17      It is further submitted that the resignation can be taken to have occurred by reason of redundancy and satisfies no fewer than three of the scenarios provided for in section 7(2)(a)-(c) above. This is because BRYR had clearly decided to bring the team’s function to an end as is evidenced by the letters of dismissal sent to the four team members appear at page nineteen of the attached booklet. The reference to a failure to secure funding is also consistent with this being a redundancy-type situation.

1.18      The complainant’s evidence will be that BRYR refused to consider a transfer of employment of any of the six employees to Star. That this is the case is also evidenced by the correspondence which passed between the complainants’ trade union representative and BRYR’s representative in or about March 2022. In that regard, it will be recalled that, in March 2022, some three months post-termination of her employment, BRYR sought to revoke its earlier refusal to permit the six employees transfer to the new entity. It is submitted that this change of position was because BRYR belatedly realised that it was now left exposed to their redundancy complaints under the 1967 Act. In other words, BRYR realised that it would be far less expensive for it to consent to the complainant’s transfer of employment to Star. Of course, this change of position came too late in the day. The complainant, like her co-workers, had already ended her employment with BRYR and commenced a new contract of employment with Star. The new contract of employment commenced on the 10th January 2022. That contract with Star specifically provides that “no previous employment counts as part of [her] period of continuous employment”. It is submitted that this contractual provision is consistent with the complainant’s submission that there was no transfer of undertakings from BRYR to Star. BRYR refused to engage with Star regarding the possibility of treating this as a transfer of undertakings and that is why the complainant lost her previous years’ service when she commenced her new job. It was, and is, not possible to rewrite history in the circumstances. In that regard, it should be noted that Regulation 4(1) of the 2003 Regulations provides that “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”. Thus, BRYR’s attempt in March 2022 to seek to retrospectively apply the TUPE Regulations was in any event impermissible under the Regulations themselves as they were only concerned with the rights and obligations that existed in December 2021. Instead, the position is that the complainant’s employment with BRYR was terminated on grounds of redundancy in December 2021 and she immediately took up a new position with Star in January 2022. BRYR had the opportunity to do the right thing and seek to protect its employees’ by allowing TUPE to apply but chose not to do so. The price that BRYR must now pay is the complainant’s redundancy lump sum. 

The TUPE Complaints against Star

1.       The complainant commenced employment with Star on the 10th January 2022 and signed a written contract.

2.       The complaint against Star under the 2003 Regulations will be pursued only if the complainant’s redundancy complaint is dismissed. If the redundancy complaint succeeds, however, it is acknowledged that the TUPE complaint falls away.

3.       In the event that the redundancy complaint fails, there may be a finding that the complainant’s position was not made redundant with the result that she will not be entitled to any redundancy lump sum. It is the complainant’s alternative position that, in that event, she is entitled to the benefit and protections of the 2003 Regulations. This is because, it is submitted, if the complainant was not made redundant, there is then an argument to say that there was a transfer within the meaning of Regulation 3(1). Supporting this argument is the fact that the Outreach Team in its entirety was transferred across to Star from BRYR. The function which the team performed at BRYR was predominantly the same as it now carries out with Star.

4.       Separately, it is submitted that, if Star seeks to rely on the complainant’s contract of employment in which it is stated that she did not carry over any previous service, the complainant is entitled to rely on Regulation 9 which renders void any provision in any agreement that purports to limit or exclude the application of the Regulations.

5.       It is submitted that the fact that BRYR sought to retrospectively apply the 2003 Regulations despite having previously refused to do so, can be taken into consideration by the Adjudication Officer in deciding whether to apply them.

6.       In the event that the redundancy complaint is dismissed, and a transfer of undertakings situation found to exist, the complainant seeks compensation arising out of Star’s contravention of its obligation to provide transfer-related information to the complainant and its obligation to consult with the complainant, both of which obligations are provided for in Regulation 8.

7.       Regulation 8’s duty to inform and to consult with “employee representatives” arises prior to the transfer, in respect of any “measures” envisaged in relation to the employees. Here, there was no such information provided or consultation afforded by Star. Thus, the complaint alleging contravention of Regulation 8 must succeed.

8.       As regards redress, the maximum redress which may be awarded for contravention of Regulation 8 is compensation not exceeding four weeks’ pay. However, the maximum redress for all other contraventions is much more significant having a limit of two years’ pay. Thus, it is submitted that Star’s failure to recognise the complainant’s transfer, and the transfer of her rights and obligations under her BRYR contract, should attract compensation under this heading. Similarly, Star’s attempt to limit the application of the Regulations in the complainant’s contract of employment also constitutes a breach of Regulation 9 and should attract compensation under the latter heading.

Conclusion

1.       It is submitted that the complainant’s redundancy complaint should succeed having regard to the foregoing.

2.       Alternatively, if her redundancy complaint is dismissed, the Adjudication Officer is urged to find that there was a transfer of undertakings from BRYR to Star which resulted in the complainant’s rights and obligations (including her right to rely on her previous length of service with BRYR) transferring to Star. In that event, compensation should be awarded against Star arising out of its breaches of Regulations 4, 8 and 9.

At the hearing of the complaint the Respondent’s representatives requested an adjournment of the hearing due to the late arrival of submissions from the complainant’s representative. This was the second request for an adjournment; an earlier request had been refused approximately one week prior to the hearing.

At the hearing the request for an adjournment was considered and refused by the Adjudication Officer (myself).

The Respondent did not present a submission to the hearing.

The Respondent did state that the reasons behind the termination of the Complainant’s employment was the withdrawal of funding from the HSE for 2022.

The Respondent sought legal advice and that advice was not to accept that this was a TUPE situation.

Request for an adjournment of the hearing.

At the hearing of the complaint the Respondent’s representatives requested an adjournment of the hearing due to the late arrival of submissions from the complainant’s representative. This was the second request for an adjournment; an earlier request had been refused approximately one week prior to the hearing.

At the hearing the request for an adjournment was considered and refused by the Adjudication Officer (myself) for the following reasons:

1.       The Respondents were aware that complaints had been submitted to the Workplace Relations Commission as far back as July 2022, some 15 months before the hearing.

2.       The letter informing the Respondents that the hearing would take place on 3rd November 2023 was sent on 27th September 2023, some 5 weeks prior to the actual hearing date.

3.       The hearing of these complaints had previously been scheduled for hearing on 23rd April 2023 and postponed by the Workplace Relations Commission.

CA – 00049895 – 001 and CA – 00049895 – 002 – complaints submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003).

The representative for the Complainant has stated In the event that the redundancy complaint fails, there may be a finding that the complainant’s position was not made redundant with the result that she will not be entitled to any redundancy lump sum. It is the complainant’s alternative position that, in that event, she is entitled to the benefit and protections of the 2003 Regulations. This is because, it is submitted, if the complainant was not made redundant, there is then an argument to say that there was a transfer within the meaning of Regulation 3(1). Supporting this argument is the fact that the Outreach Team in its entirety was transferred across to Star from BRYR. The function which the team performed at BRYR was predominantly the same as it now carries out with Star.

Whilst considering this aspect I cannot overlook the position adopted by Ballymun Regional Youth Resources Limited that the Regulations did not apply and that there was no question of a transfer under the Regulations in circumstances where STAR were willing to accept such a transfer.

I find and conclude that Ballymun Regional Youth Resources Limited adopted a position in which the question of a transfer did not arise at the time of the termination of employment, this was therefore a redundancy situation. CA – 00049895 – 001 and CA – 00049895 – 002 are deemed not to be well founded.

CA – 00049953 – 001.A complaint submitted under section 39 of the Redundancy Payments Act, 1967.

I agree with the argument presented by the representative of the Complainant,

The complainant’s entitlement to a redundancy lump sum in circumstances where she resigned is based on section 9(1)(c) of the Redundancy Payments Act 1967 which provides as follows:

For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if the employee terminates the contract under which he is employed by the employer […] in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer’s conduct.

Complaint CA – 00049953 – 001 is deemed to be well founded and I now order Ballymun Regional Youth Resources Limited to pay the complainant her statutory redundancy payment.

Payment should be made within 42 days from the date of this decision.

CA – 00049895 – 001 and CA – 00049895 – 002 are deemed not to be well founded.

Complaint CA – 00049953 – 001 is deemed to be well founded and I now order the Respondent to pay the complainant her statutory redundancy payment.

Payment should be made within 42 days from the date of this decision.