Complainant

Respondent

Parties

Audrey Carey

Rentokil Initial Limited

Representatives

SIPTU

 Dundon Callanan Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043375-001

Withdrawn

01/04/2021

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-00043375-003

01/04/2021

In 2018, the complainant transferred to the respondent in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (Statutory Instrument 131 / 2003) (“the Transfer Regulations”).  When she worked with her previous employer, she was paid weekly.  At some point after the transfer, the respondent changed her pay frequency to fortnightly.

On December 15th 2020, the complainant and her colleagues were informed that, in January 2021, the respondent intended to change their pay frequency to monthly.  This was confirmed in a letter on December 23rd.  The complainant and her colleagues objected to the change and a second meeting took place on January 7th 2021.  No agreement was reached on the issue and, on February 26th 2021, the respondent wrote to the complainant to confirm that she would be paid monthly with effect from March 17th.  Since that date, the complainant has been paid on the 17th of each month.  On April 1st 2021, the complainant and nine other employees submitted this complaint to the WRC.

The complaints were put on hold when, on April 19th, on behalf of the complainants, Mr Dorda wrote to the WRC to inform us that the respondent wished to attempt to resolve the dispute locally.  Meetings took place in May and June 2021 in accordance with the company’s grievance procedure.  Towards the end of 2021, the complainant and some of her colleagues were informed that their grievance was not upheld.  They appealed this outcome, but in early 2022, they were informed that the decision to move to monthly pay would not be overturned.

Mr Dorda submitted that, in contravention of Regulation 4 of the Transfer Regulations, by changing her pay frequency from fortnightly to monthly, the respondent failed to observe the complainant’s terms and conditions which transferred from her previous employer in 2015.

As a preliminary matter, Mr St John Dundon, for the respondent, argued that the time limit for submitting this complaint has expired, as it has been lodged three years after the complainant transferred from her previous employer. 

In the first instance, I intend to examine the preliminary issue of the time limit for submitting this complaint under the Transfer Regulations.

In accordance with section 41(6) of the Workplace Relations Act 2015, Mr St John Dundon submitted that a complaint must be submitted to the WRC within six months of an alleged contravention, or, for reasonable cause, within 12 months.  He referred to the decision of the former Employment Appeals Tribunal (EAT) in Morawska and Others v Dublin Airport Authority Plc (DAA)[1].  In that case, the employee and her colleagues transferred to DAA between October 29th and November 19th 2010.  They submitted a complaint to a Rights Commissioner under the Transfer Regulations on February 24th 2012.  The Tribunal decided that the complaints were lodged outside the time limit set out at Regulation 4 of the Transfer Regulations.

Mr Dorda provided a submission on this matter in advance of the hearing of the complaint.  He argued that the obligation to observe transferred rights and obligations does not expire on the day after the transfer, or six or 12 months after the transfer.  It is an ongoing obligation.  He submitted that it is similar to the transferee’s obligation to observe the provisions of a collective agreement.  At the time of the transfer, the complainant and her colleagues were assured that their contracts would not be altered without their consent.  However, by moving from fortnightly to monthly pay in March 2021, the respondent breached the complainant’s protected rights.  She is now seeking compensation for this breach.

This complaint was submitted to the WRC on April 4th 2021, arising from the decision of the respondent to change the frequency of the complainant’s pay from fortnightly to monthly on March 17th 2021.  She transferred to the respondent three years previously and she claims that the protection of Regulation 4 of the Transfer Regulations applies to this change in her conditions of employment.  Regulation 4 relates to the transfer of contractual entitlements.  Sub-sections (1) and (2) provide that terms and conditions that exist on the date of the transfer will continue to apply following the transfer:

(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 the termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

No argument was made that there was a collective agreement between the transferor and the complainant or her union, and we are therefore concerned with a breach of Regulation 4(1), concerning the obligation of a transferee to continue to observe the terms and conditions existing on the date of a transfer.

Aside from the time limit set out at section 41(6) of the Workplace Relations Act, Regulation 10(6) of the Transfer Regulations provides that a complaint must be presented within six months of the alleged contravention to which it relates, or, within 12 months “as the rights commissioner considers reasonable.”  I note the findings of the EAT in the decisions in Morawska and others v DAA, which are clear regarding the requirement to submit a complaint concerning terms and conditions existing on the date of a transfer, within six or 12 months of the date of the transfer.  I also note the decision of the Labour Court in December 2018 in CH Marine Limited and Ciarán O’Connor[2].  Mr O’Connor transferred to CH Marine on January 20th 2017 and he submitted a complaint to the WRC on October 27th 2017 concerning a breach of the Transfer Regulations.  The Court determined that his complaint was submitted outside the six-month time limit set out at Regulation 10(6) and he was not granted an extension to 12 months.

Conclusion

The intention of the Transfer Regulations is that terms and conditions that apply to employees on the date of a transfer are protected and must transfer to the new employer.  A timeframe of six months (or 12 months) is available within which a complaint can be submitted regarding terms or conditions which have been changed arising from the transfer.  This complaint has been submitted for adjudication three years after the complainant transferred to the respondent in 2018.  It is not a complaint that arises from the fact of the transfer, but is a change required by the employer in the course of efforts to introduce efficiencies in their payroll system.  I find therefore, that the time limit for submitting this complaint under the Transfer Regulations has expired.

It is my view that that the Transfer Regulations are not intended to prevent a transferee from any contemplation of changes to their employees’ terms and conditions in the future, as this would have a stifling effect on an employer’s ability to introduce efficiencies.  Following a transfer, the normal rules of engagement apply where an employer seeking amendments to contractual terms and conditions must consult with his or her employees and seek to implement the change by agreement.  This is an ongoing and dynamic process, and terms and conditions of employment are not “frozen” on the date of a transfer.  As a change to the frequency of pay without agreement is a significant and disruptive matter for employees, this complaint requires to be considered under different legislation.

I have concluded that this complaint has been submitted outside the time limits set out at section 41(6) of the Workplace Relations Act 2015 and section 10(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  I decide therefore, that it is not well founded.

Change in frequency of payment of wages.