TUD237

Appeal of Adjudication Officer Decision No's: ADJ-00014782 (CA-00018955-005)


BACKGROUND:
The Employer appealed the Decision of the Adjudication Officer to the Labour Court 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) 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 Sandris Brants (the Complainant).

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 Employment Regulation Order (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.

Summary Position of the Complainant

The Complainant submitted that he did not receive a contract of employment from the Appellant for some time after the transfer of his employment to that company. He submitted that, as a result, and because he was unable to provide the Court with a copy of that contract or any payslips, he was not in a position to submit details of any alleged breach of the Regulations.

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 Court has heard from the Appellant and the Complainant at the hearing and has carefully considered the written submissions of the Appellant which had been provided in advance to the Court. The Complainant did not provide the Court with a written submission in advance of the hearing or at all.

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 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
	Kevin Foley
TH	______________________
23 November 2023	Chairman