Complainant

Respondent

Parties

Mark  Sutton

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-00049907-001

26/04/2022

The Complainant is a Youth Worker and was employed by the Respondent from 7th September 2014 until 31st December 2021. His earnings were in excess of €600 per week.

A complaint was received by the Workplace Relations Commission on 26th April 2022 (CA-00049947-001).

CA – 000542455 – 001

1.       The TUPE Complaints against BRYR and Star

1.1          The complainant commenced employment with Star in January 2022 and signed a written contract of employment.

1.2          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.

1.3          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 he will not be entitled to any redundancy lump sum. It is the complainant’s alternative position that, in that event, he 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.

1.4          Separately, it is submitted that, if Star seeks to rely on the complainant’s contract of employment in which it is stated that he 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.

1.5          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.

1.6          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 and BRYR’s contraventions of their respective obligation to provide transfer-related information to the complainant and their respective obligations to consult with the complainant, both of which obligations are provided for in Regulation 8.

1.7          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. The obligation lies with both transferor and transferee. Here, there was no such information provided or consultation afforded by either. Thus, the complaint alleging contravention of Regulation 8 must succeed.

1.8          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 both respondents’ failure to recognise the complainant’s transfer, and the transfer of his rights and obligations under his 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

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

Alternatively, if his 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 his right to rely on his previous length of service with BRYR) transferring to Star. In that event, compensation should be awarded against both respondents 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.

CA – 000542455 – 001

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 – 000542455 – 001

The representative for the Complainant has stated as per submission:  If the redundancy complaint succeeds, however, it is acknowledged that the TUPE complaint falls away.

The complaint under the Redundancy Payments Act 1967 has succeeded. This complaint therefore is deemed not to be well founded.

This complaint is deemed not to be well founded.

S.I. No. – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.