TUD234

Appeal of Adjudication Officer Decision No's: ADJ-00014744 (CA-00018953-005)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’).  A Labour Court hearing took place on 10 October 2023.  The following is the Court's Determination:

DETERMINATION:

This matter comes before the Court as an appeal by Noonan Services Group Ltd (the Appellant) 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 Pavels Prokopcenko (the Complainant).

The Complainant communicated with the Court shortly before the hearing of the Court to advise that he would not be attending the hearing. He did not seek a postponement or any change to the arrangements made to hear the appeal. He did not provide the Court with a written submission in advance of the hearing or at all.

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 his contention that a contractual entitlement which he 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 and confirmed to the Court in advance that he did not intend to do so. The Court is satisfied that the Complainant was on notice of the date, time and venue of the hearing but that he decided for whatever reason that he would not attend the hearing.

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 he had not been afforded his entitlements under the Regulations.

The Appellant has submitted that no entitlement of the Complainant under the Regulations was denied to him.

In all of the circumstances, the Court concludes that the Complainant has not made out his complaint that the Respondent has failed to apply the terms of the Regulations.

Decision

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

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
16/11/23	Chairman