TUD231

1.Appeal of Adjudication Officer's Decision No(S).ADJ-00028956 CA-00036663-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Courtunder the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’)on21 May 2022.Labour Court hearings took place on29 November 2022 and 2 February 2023. The following is the Determination of the Court:






DETERMINATION:

This is an appeal by Gheorghe Daniel Marcu (Complainant) against decision ADJ-00028956 CA 00036663-004 of an Adjudication Officer in his complaint against his employer Dangan Group(the Respondent). The complaint was made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I.131 of 2003). The Adjudication Officer found that the complaint was not well founded.

Background

The Complainant transferred to the Respondent’s employment under a transfer of undertakings on 14^thApril 2020. He had been employed with the previous employer since August 2016. The Complainant’s complaint is that there was a change to his terms and conditions of employment after he transferred.

The complaint was lodged with the WRC on 15^thJune 2020. The cognisable period for the purposes of the Act is 16^thDecember 2019 to 15^thJune 2020. The Labour Court heard the appeal on the 29^thNovember 2022 and 2^ndFebruary 2023.

This case is linked to cases HSC/22/7 and TE/22/22

Summary of Complainant’s case and evidence.

The Complainant stated that on the 14^thApril 2020 he was asked to carry out a task that in the previous employment the staff had refused to do. When he declined to do it, he was advised that he would have to go on night shift. It was the Complainant’s submission that he understood that following the transfer of undertakings there would be no change to his terms and conditions of employment and that these changes were contrary to the Regulations.

Summary of Respondent’s case and evidence.

The Respondent submitted that the task the Complainant was asked to carry out was part of the task list that was supplied to them from the previous employer. Their understanding of why the staff had previously refused to do it was that they had insufficient time. The Respondent had restructured the work in a way that addressed this concern. The Complainant was offered night work as an alternative to carrying out the task as he had previously worked nights. There was no change to his terms and conditions of employment.

The applicable law

Rights and obligations; Article 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 Decision

Article 4 (1) of the Regulation citied above states that the Transferee shall observe rights and obligations arsing from the contract of employment. The Complainant has not identified for the Court any change to any right or obligation arising from his contract following the transfer of undertakings and therefore his complaint must fail.

The appeal fails. The decision of the Adjudication Officer is upheld

The Court so decides.

	Signed on behalf of the Labour Court
CC	______________________
15 February 2023	Louise O'Donnell