TUD2311

TU/20/11

DECISION  NO. TUD2311

SECTION 44, WORKPLACE RELATIONS ACT 2015

SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003

PARTIES:

NOONAN SERVICES GROUP LIMITED

(REPRESENTED BY MANAGEMENT SUPPORT SERVICES)

AND

ANNALYN ORDONIA

DIVISION

Chairman: Mr. Foley

Employer  Member: Mr. Marie

Worker Member: Ms. Tanham

SUBJECT

Appeal of Adjudication Officer Decision No's: ADJ-00014741 (CA-00018936-005)

BACKGROUND

Both parties appealed the Decision of the Adjudication Officer to the Labour Court, the Worker on 11 February 2020 and the Employer on 17 January 2020. A Labour Court hearing took place on 16 November 2023. The following is the Determination of the Court:

DECISION

This matter comes before the Court as an appeal by Noonan Services Group Ltd (the Appellant) and Annalyn Ordonia (the Complainant) of a decision of an Adjudication Officer given under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (the Regulations) in a complaint made by the Complainant.

The Complainant did not attend the hearing of the Court.

Summary position of the Appellant
The Appellant submitted that no element of the contract of employment of the Complainant at the time of transfer in 2010 demonstrated an entitlement to receive a pay increase on each occasion when an ERO was enacted.

The Appellant accepted that an internal e-mail of the previous employer dating from 2007 demonstrated that on that occasion a pay increase was applied to the Complainant which was equivalent in percentage terms to the value of an increase emerging from a ERO enacted at that time. The Appellant submitted that a single occasion when such an event occurred cannot be taken to amount to the creation of a contractual right to have a similar increase applied at any time in the future.

The Appellant submitted that the legislation governing the enactment of ERO's was struck down as unconstitutional in 2011 and consequently no contention could be made that any contractual entitlement, the existence of which is rejected by the Appellant, could survive the striking down of the legislation in place at the time the alleged contractual term was in being.

The Appellant submitted that no basis whatever had been put forward by the Complainant to support her contention that a contractual entitlement which she enjoyed prior to the transfer of the business to the Appellant in 2010 was not carried forward.

Relevant Law
Section 4 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides in relevant part as follows:

4. (1)     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.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Discussion and conclusion

The Complainant failed to appear at the hearing of the Court. The Court is satisfied that the Complainant was on notice of the date, time and venue of the hearing but that she decided for whatever reason that she would not attend the hearing. The Court concludes that the Complainant was not present to move her appeal of the decision of the Adjudication Officer and that the appeal must consequently fail.

The Court has heard from the Appellant at the hearing and has carefully considered the written submissions of the Appellant which had been provided in advance to the Court.

The Court has been unable to identify any basis for any contention of the Complainant that she had not been afforded her entitlements under the Regulations.

The Appellant has submitted that no entitlement of the Complainant under the Regulations was denied to her.
In all of the circumstances, the Court concludes that the Complainant has not made out her complaint that the Respondent has failed to apply the terms of the Regulations.

Decision
The Court decides that the within appeal of the Appellant must succeed and the decision of the Adjudication Officer is set aside.

The Court so decides.

 Signed on behalf of the Labour Court

NOTE

Enquiries concerning this Decision should be in writing and addressed to Therese Hickey, Court Secretary.