Complainant

Respondent

Parties

Aideen  O'regan

CBRE GWS (Ireland) Limited

Representatives

 James Nerney BL instructed by Niall MacCarthy Gaffney Halligan & Co Solicitors

Ananta Kaur  IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044338-001

25/05/2021

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-00044338-003

25/05/2021

The Complainant commenced employment with the Respondent as a facilities executive on 1st January 2015 having transferred under the Transfer of Undertakings from her previous employer Thompson Reuters (TR) on that date. The Complainant’s employment with TR commenced on the 7th February 1995.  She was paid €751 per week.  She was made redundant on the 30th November 2020. She is claiming that she was unfairly dismissed contrary to the terms of the Unfair Dismissals Act 1997. She is also claiming a breach of the terms and conditions transferred under the European Commission (Protection of Employees on Transfer of Undertakings) Regulations 2003 from her previous employer.

Submission on behalf of the Complainant

It was submitted that the Complainant was assured by the Respondent that her terms and conditions of employment following transfer were protected by the TUPE Regulations and that the terms of employment with the Respondent would be no less favourable than she had with TR. In particular, the Complainant was assured by the Respondent that in the event of a redundancy situation occurring, she would have the same redundancy benefits with the Respondent as she had with TR, namely six weeks’ pay per year of service with no cap.

The Complainant was made redundant on the 30th November 2020 but, notwithstanding the Respondent’s previous assurances, she did not receive her contractually assured redundancy payment of six weeks’ pay per year of service with no cap.  She was given statutory redundancy of 2 weeks’ pay per year of service with a cap of €600 per week.

The Complainant and another employee of TR were the only Irish employees of TR who were transferred to the Respondent, with the vast majority of the employees transferred being UK employees.  The Complainant and the other employee (Ms. X) met with the Respondent’s representative, Mr. H on the 18th November 2014to discuss the terms of the transfer.

It was submitted that Mr. H stated to the Complainant and Ms, X that he was aware that one of the primary areas of concern for them, given their long service with TR, was that they would retain the same redundancy benefits as they had with their previous employer. Mr. H addressed their concerns at the outset of the meeting by confirming that the Respondent would mirror the redundancy benefits which they had enjoyed with TR.

The Complainant was moved to reception following the transfer.  Initially she was busy learning all the new systems and procedures as well as carrying some of the role she performed for TR. Over time her role changed and she was no longer doing tasks which she had previously carried out despite assurances that under TUPE her role would remain the same.  The legal team of which the Complainant had been was part of since joining TR moved premises in May 2017 and neither the Complainant nor Ms. X were told what was happening to them. The Complainant was moved to the Respondent’s offices in the IFSC and her role was fundamentally changed by this move and she had no work because the offices had their own facilities management and the legal team was based across the city in a serviced office.

When the Complainant queried her manager about the work she was supposed to be doing she was asked to carry out work for some UK offices. The legal team moved to the IFSC offices in 2018 but the Complainant did not rejoin the team.  The office was closed in March 2020 due to the Covid pandemic.  The Complainant worked from home on Health and Safety projects. In September 2020 she was informed that her role would be reduced from 4-day week to a 2-day week from November 2020. The Complainant protested that the Respondent could not unilaterally reduce her working week and that she would have to be offered the option of redundancy or an alternative position.

Legal Submission

It was submitted that the Complainant’s selection for redundancy was not based on considerations which the respondent was entitled to take into account, but rather was based on an incorrect interpretation of the severance /redundancy benefits which would apply to the Complainant in the event of her redundancy.

TUPE

It is denied that the complaint is out of time. It was submitted that the complaint relates to the 30th November the date she was made redundant and it was on this date that the breach occurred and the claim crystalised.  She was entitled to no less favourable treatment in relation to redundancy and to rely on the severance package of enhanced redundancy. The Complainant could not bring a claim prior to the redundancy date she could only do so when she learned that the Respondent was resiling from the enhanced redundancy terms agreed on the transfer.

It was submitted that the Complainant was only selected for redundancy after the Respondent believed that the terms of the enhanced redundancy package had expired in January 2020.

Aideen O’Regan Affirmation

The Complainant said that she started work with a small publishing company in 1995 and was subsequently transferred to TR and in 2015 transferred by TUPE to the Respondent.  The Complainant said that only 2 employees were being transferred and, on the 18th May 2014, they met with Mr. H from HR. She said that, because they were older employees, they were worried about being transferred.  Mr H sat down with her and Ms. X and went through a document and the first matter discussed was the severance package.  She said that she was told that the severance/redundancy package applying to them in TR, which was 6 weeks of pay per year of service, would be retained in the event of redundancy. She said there was no time limit on the benefit after the transfer. 

The whole reason for the meeting was to discuss the terms of the contract. She signed the contract on the 4th December 2014 and never heard anything further about the terms after that.  After the transfer she remained in the same office but there were changes and she had to learn all the new systems. In May 2017, the legal team, to which the Complainant was attached, moved offices but she was moved to a different office in Exchange Place. There was very little work for her to do.  She than got some work to do from the UK office.  There was another change of premises for the legal team, but she never went back to work for that team. 

Due to the Covid pandemic in March 2020 she started working from home.  She got a new laptop and was told to do whatever work she could.  She was drawing up health and safety protocols for the offices and used to go into the office once per week. A new manager over the Irish offices was appointed in the middle of 2020.

In September 2020 the Manager told her he was looking at the roles and was reducing her hours from a 4-day week to a 2-day week. She said that she told him that her contract was protected by the TUPE transfer he could not reduce her hours to a 2-day week. She said that she was surprised by the timing of the redundancy. She said that she was busy on the reopening of the offices after Covid. She believed it would be busier given the new work the company had taken on.  She attended a meeting with the company and was told she was only entitled to statutory redundancy and she raised her entitlement to enhanced redundancy.  At the final consultation meeting she informed by the company that she was not entitled to the enhanced redundancy of 6 weeks’ pay per year of service.  She said that she was never told nor received any notice that her terms of employment had changed.  She was told that these terms only lasted 5 years after the TUPE transfer. At the time of the consultations about TUPE there was no limit placed on the enhanced redundancy.

The Complainant said she looked into the matter with the UK office. She discovered that the Unite union negotiated the TUPE transfer on behalf of the UK staff, these negotiations went on for months and there was a 5-year limit placed on an entitlement to enhanced redundancy after the TUPE transfer. She said that these negotiations took place after she had signed the TUPE transfer contract.  She said that she never had seen the 5-year limit on the severance package nor was she given a copy of the booklet in which this was contained and relied on by the Respondent.   She said that she signed her contract on the basis of the benefits outlined to her in the consultations about TUPE.  

In cross examination the Complainant said that she understood that the proposed reduction in her hours from a 4-day week to a 2-day week were cost cutting measures.  She accepted that she had 4 consultation meetings with the Respondent about redundancy in October 2020.  She said that the booklet about the cap on the enhanced redundancy terms was not given to her by the company and it was at the consultation meetings she learned about it.  She accepted she opted for redundancy rather than reduce her hours to 2 days per week and redeployment was not offered to her.

She accepted that there was no signed documentation stating that she was entitled to the enhanced severance package.  She said at the meeting with Mr. H before the transfer she was given a document and was assured that all the benefits would remain the same.  The Complainant accepted that the letter given to her on the transfer does not mention enhanced redundancy.  The document given to her at the consultation meeting confirmed the transfer entitlements.

Respondent’s Submission          

The Complainant alleges that she was made redundant; that it was not a legitimate redundancy situation; and she was unfairly dismissed. She also claims that the selection process was unfair and fair procedures were not afforded to her. The Respondent refutes this allegation in its entirety. A legitimate redundancy situation arose, the Respondent engaged in a meaningful consultation with the Complainant, but no suitable alternative role could be found. The Complainant was afforded the right to fair procedures at all times. By virtue of this, the Complainant cannot have been unfairly dismissed within the meaning of the Act.

The Respondent is the world's largest commercial real estate services firm serving owners, investors and occupiers, with offices in Dublin, Cork and Belfast. They have over 750 staff across all service lines, including CBRE GWS. Being part of the world’s largest commercial property services and investment firm, GWS (Ireland) Limited are able to deliver unrivalled service and assistance in the development, acquisition, selling, financing, leasing, valuing and management of assets.

 Background to the claim

The background to this claim relates to a restructure of the CBRE structure in Ireland and the UK. The restructure resulted in the elimination of 1 position in the UK and a reduction in hours for the one position in Ireland from 4 days to 2 days per week. The reason for the hour’s reduction was owing to the reduction in client demand at the office location in Dublin, because of this, the Complainant was given notice that their role was at risk of Redundancy on 1st October 2020.

On October 29th 2020 the Complainant was informed, after a consultation process which commenced on 1st October 2020, that her role was being made redundant. The redundancy process followed the Respondent’s redundancy policy.

The Complainant’s employment was terminated by reason of redundancy on 30th November 2020. She was paid Statutory redundancy of €31,620.00; payment in lieu of notice of 1 month and unused annual leave of 8.5 days.

Unfair Dismissal Act 1977-2015

It is the Respondent’s position that the Complainant was not unfairly dismissed. The Respondent submitted that the dismissal is by reason of genuine redundancy. The Respondent notified the Complainant in writing that her role was ‘at risk’. She was afforded the right to representation in line with the Respondent’s policy and was afforded the right to appeal her redundancy. Dismissal on grounds of redundancy is not an unfair dismissal.

The Complainant has alleged that she was unfairly dismissed due to being unfairly selected for redundancy.

S. 6(3) of the Unfair Dismissal Act 1977 provides:

(3) “Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal,

or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

The Respondent sustains that the Complainant is unable to contest the dismissal due to redundancy as she does not meet the above requirements.

In applying the above extract of the Act, an employee may contest a dismissal due to redundancy if:

- the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer; and

- their selection contravened a procedure/custom and practice in relation to selection for redundancy and the Company had no special reasons to depart from the procedure or practice.

The Respondent submits that the Complainant is unable to contest the dismissal due to redundancy as she does not meet the above requirements.

Section 6 (4) of the Unfair Dismissal Act 1977 (as amended) states that a dismissal shall not be deemed unfair if it results wholly or mainly from one or more of the following:

“(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute”.

The Respondent submits that the Complainant’s dismissal resulted wholly from ‘the redundancy of the employee’. The Respondent sustains the dismissal is by reason of genuine redundancy.

The Respondent also relies on the judgement of Brigid Burns v Component Distributors (CD Ireland) Ltd, UDD1854 which outlines that;

“The Court is satisfied that the termination of the Complainant’s employment was directly related to the fact that her job no longer existed and no alternative positions were suitable/available for her.”

Section 6 (7) of the Unfair Dismissals Acts, 1977-2015 states;

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the

employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

It is submitted by the Respondent that it behaved reasonably and satisfied Section 6(7) of the Unfair Dismissals Act in the steps taken by way of meetings, and correspondence with the Complainant. The Respondent refutes that the Complainant was selected for redundancy unfairly and contends that the redundancy was solely a cost-cutting measure and that no other factors formed an operative consideration in formulating the decision to put the Complainant’s role at risk of redundancy. It was the role, and not the person, that was made redundant.

 Section 7 (2) of the Redundancy Payments Act 1967 outlines the five legitimate reasons for redundancy:

“(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or”

It is clear from the above passage that the circumstances which led to the Complainant’s redundancy satisfy the criteria set out in Act. The Respondent refutes that the Complainant was unfairly selected for redundancy and contends that the redundancy was solely a cost-cutting measure which was made necessary due to changes in labour requirements of a client across Ireland and the UK. The needs and long-term viability of the business were the only considerations made by the Respondent in formulating the decision to put the Complainant’s role at risk of redundancy.

In conclusion, the Respondent submits that the dismissal of the Complainant due to redundancy cannot be deemed to be unfair as there was a genuine redundancy scenario which affected the Complainant’s role. The Respondent contends that the process utilised was fair and reasonable and in line with the custom and practice. The Respondent is adamant that it was the role, and not the person that was made redundant.

TUPE

It was submitted that this complaint was referred outside of the statutory 6-month time limit and the Respondent has no case to answer. The Complainant was transferred to the Respondent on 5th January 2015.   S. 10(6) of the European Communities (Protection of Employees on Transfers of Undertakings) Regulations, 2003 states:  

“A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.”

As the timeframe that has elapsed since the Transfer of Undertakings was affected, the Adjudicator does not have the jurisdiction to hear this complaint.

 Stephen Cullen Head of Operations (Affirmation)

He said that the Ireland operation came under his role in mid-2020. One of their clients needed less support from the Respondent and a restructuring of the operation took place and it was decided that the work for this client would involve a person on a 2-day week.

On the 30th September he met the Complainant and advised her of the changes and that her role was at risk of redundancy. He offered her a 2-day week but the Complainant did not want to reduce her hours or redeploy.  He wrote to her on the 1st October 2020 confirming that her role was at risk of redundancy and a 30-day consultation period had commenced. He set out 3 options resulting from the consultation period, the Complainant would work reduced hours in her current role, redeployment if a suitable role could be identified or notice of redundancy.

He said that the Complainant did not raise any grievance at the consultation meeting but she did say she was entitled to an enhanced redundancy package from her previous contract of employment. He said that he told her if there was an agreement or documentation that demonstrated that she was entitled to enhanced redundancy to produce it evidence.  He said that he was not involved in the 2015 transfer nor did not have any documentation on the TUPE transfer.

The Complainant was notified on the 30th October 2010 that her employment was ceasing by reason of redundancy on the 30th November 2020 and she was paid statutory redundancy. 

In cross examination Mr Cullen accepted that it was not unusual for companies to enhanced redundancy packages in place to protect against losing key staff. He said that he had no involvement in the Irish TUPE transfer of staff. In response to a question that the enhanced redundancy package which transferred from TR to the Respondent was not time limited, Mr Cullen said that he could not comment. He had a conversation with the Complainant to let her know that there was going to be a change to her position either reduced hours or redeployment.  He recognised that a 2-day week could not be unilaterally imposed.  The Complainant raised enhanced redundancy but it was his understanding that enhanced redundancy package elapsed in January 2020.  He said that a reduction in hours became necessary after the client needed less support. 

James Stowe HR Business Partner (Affirmation)

He said that he heard from the Head of Operations about the redundancy and he provided the procedures. He said that the redundancy procedure applied followed a 30-day process to see if the Complainant’s hours could be reduced or if she could be redeployed and if neither of these options were successful, she would be offered redundancy.

There was a reduction of work from a client and it was necessary to reduce the Complainant’s hours as she was the only person in the role. He said that there were 4 meetings with the Complainant at the first meeting she was advised that her hours were being reduced from 4 days to 2 days per week. Initially the Complainant said that she would consider if the 2-day week suited her and then refused to consider it. He said from the outset the Complainant was not interested in moving to another account. He said that there were a number of vacancies for similar positions in the Dublin area and he put the employee in touch with the manager. He accepted that she was not offered any suitable alternative roles. At the final meeting she was issued with a notice of redundancy.

Cross Examination by the Complainant’s Barrister

He said that he was not involved in the TUPE transfer as he only joined the company in 2015.  He became involved in late September when Mr. Cullen asked him about the procedures about reducing the Complainant’s hours to a 2-day week. He attended the meeting with the Complainant and she was initially told her hours were being reduced to a 2-day week. He accepted that the Complainant raised the TUPE transfer contract and said her hours could not be reduced.

He accepted that the TR redundancy package was 6 weeks service per year of service with no cap. He said that when he retrieved the TUPE file, he could find no reference to the redundancy terms while every other benefit was mentioned.

He accepted that the 2document pages undated and unsigned attached to the notes of the meeting on 8th October 2019 came from the UK TUPE file were part of a larger booklet. He said that this document provided for a cap of 5 years on enhanced redundancy and at the time of the consultations with the Complainant this cap had expired.  He did not agree that the Complainant had a benefit of 6 weeks per year of service with no cap after the TUPE transfer but accepted that that the redundancy terms applying in TR was 6 weeks per year of service.  He could not say if the booklet was given to the Irish employees at the time of the transfer but accepted that the booklet which had a cap of 5 years only applied to the UK employees.

Unfair Dismissals Act 1977

The Complainant’s case is that she was unfairly dismissed when she was made redundant. She submitted that she was busy at the time she was asked to reduce her hours to a 2-day week and subsequently made redundant. She does not accept a redundancy situation existed. It was submitted that the Complainant had little work to do in 2016/2017 and it was notable that when the Complainant was busy, she was selected for redundancy because the Respondent believed that the enhanced redundancy entitlement from the TUPE transfer had expired and she was only entitled to statutory redundancy.  The Respondent rejected this contention and said that a genuine redundancy situation existed following cost cutting measures and restructuring. It was necessary to reduce the Complainant’s hours by 50% because the client company needed less support hours and the Complainant was the only person in that role. The Complainant was advised that her role was at risk and was selected for redundancy following a 30-day consultation period.   

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for thepurposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. …

Selection for Redundancy

Sub section (3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

……

(c) the redundancy of the employee,

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph(d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

 “(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

The matter I must consider is whether a genuine redundancy situation existed.   I note that the Complainant was the only person in the role of facilities manager and that the Respondent decided, because of the reduction in support required by that the client account, to offer the Complainant a 2-day week which the Complainant declined and as a result she was made redundant. I am satisfied from the evidence that the work that the Complainant was employed to do had “diminished” and having regard to Section 7(2) of the Redundancy Payments Act, 1967 cited above, I am satisfied that the dismissal was for reasons of redundancy.  As the Complainant was the only employee in the role she was not unfairly selected for redundancy or selected in contravention of a redundancy procedure. I am also satisfied fair procedures were followed and the Complainant was notified that her job was at risk of redundancy and following consultation meetings she was she was made redundant.

For all of the above reasons, I find the Complainant was dismissed for reasons of redundancy and that she was not unfairly dismissed pursuant to Section 6 of the Act.

TUPE Complaint

Preliminary Issue - Time Limits

The Respondent submitted that the TUPE claim was referred outside the statutory time limit. The TUPE transfer took place in January 2015 and the statutory 6 months’ time limit for referring a complaint to the WRC runs from that date.  The Complainant submitted that the breach of the TUPE regulations only occurred on the 30 November 2020 when the Complainant was made redundant and the Respondent failed to pay her the terms of the enhanced redundancy package which transferred under TUPE. 

The Workplace Relations Act 2015 at Section 41(6) provides:

 “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

And Section 41(8) provides

(8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The period of protection under the TUPE Regulations is not limited to the date of the transfer, nor following the transfer is it limited to any particular period of time. I am satisfied that the alleged contravention of TUPE Regulations occurred on the 30th of November 2020, when the Complainant was dismissed for reasons of redundancy and paid statutory redundancy and’ not the enhanced redundancy package which she believed she was entitled to.  The date of the alleged breach is the 30th November 2020 and the complaint was referred to the WRC on the 25th May 2021. I find therefore, that the complaint was referred within the 6-month statutory time limit and I have jurisdiction to hear the complaint.

Substantive Complaint

The Complainant is claiming a breach of the TUPE Regulations in respect of the redundancy payment made to her.  She is claiming that she is entitled to enhanced redundancy package which transferred under TUPE to the Respondent. The Respondent submitted that an entitlement to an enhanced redundancy package had expired in January 2020, 5 years after the TUPE transfer, and had expired when the Complainant was made redundant on the 30th November 2020.

The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.” 

Regulation 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.

Regulation 9.   (2) provides: “A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by these Regulations shall be deemed to be modified so as not to be less favourable.

The Complainant claims that the Respondent breached the terms of the TUPE transfer when she was denied an enhanced redundancy package of 6 weeks’ pay per year of service.  The Respondent stated that the enhanced redundancy was not in the Complainant’s contract of employment and she could not produce documentation to support her claim that she had an agreement when the transfer under TUPE took place.  The reason given at the time of the redundancy was that the enhanced redundancy had expired after 5 years and the Complainant was no longer entitled to it.

The Complainant’s evidence is that she was assured at a meeting with a representative of the Respondent’s at a meeting prior to the transfer that she would retain the same enhanced severance/redundancy terms on transfer to the Respondent i.e., 6 weeks’ pay per year of service. I note that the Respondent’s witness accepted that the enhanced redundancy benefits of 6 weeks’ pay per year of service applied to the TR employees prior to the transfer.  Likewise, I note that in the notes of the consultation meeting with the Complainant, the Respondent did not dispute her contention that she had the benefit of an enhanced redundancy package, but merely disputed its duration post transfer.

Therefore, I am satisfied from the evidence that the Complainant contract which transferred under TUPE, in addition to the expressed terms, had an implied term, that in the event of a redundancy she would be entitled to a redundancy package of 6 weeks’ pay per year of service. 

The next matter for consideration is whether there was a limit of 5 years applying to the redundancy benefits post the TUPE transfer.  It is a well established principle of Irish law that a contract of employment cannot be unilaterally changed. I note that the Respondent relied on a TUPE transfer handbook, which was given to the UK employees following union negotiations, to say that the terms of the enhanced redundancy package had expired and informed the Complainant at the consultation meetings that she was only entitled to statutory redundancy.  The Complainant evidence was that she was not party to this agreement, nor was she notified that her contract of employment had changed.

I note that the TUPE Transfer handbook for the UK employees is dated April 2015, whereas the Complainant’s meeting with the Respondent’s representative’s concerning the terms of the transfer, took place on the 18th November, and the Complainant’s gave evidence, that it was at this meeting she was assured that the enhanced severance/redundancy benefits would be transferred to TUPE and no limit of 5 years was applied to the terms at that meeting.  I also note that the Respondent witness also accepted, in evidence, that the TUPE Transfer booklet only applied to the UK employees transferring under TUPE. It was submitted by the Respondents representative that the UK document which limited the enhanced redundancy post transfer to 5 years should not have been given to the Complainant at the consultation meetings. 

For the above reasons, I am satisfied that the UK agreement, with the UK employees and the union, limiting the application of the severance/ package to 5 years after the TUPE transfer, did not apply to the Complainant. The evidence supports the Complainant’s contention that the enhanced redundancy package which was one of the terms and conditions transferred under TUPE continued to apply to at the time she was made redundant without any time limit.    

For these reasons, I am satisfied that the Respondent contravened the terms of the TUPE transfer in respect of the terms of the enhanced redundancy package transferred by only paying the Complainant statutory redundancy.

I find that the complaint is well founded.  

CA-00044338-001 Unfair Dismissals Act 1977

I find that the Complainant was not unfairly dismissed pursuant to Section 6 of the Act.

CA-00044338-003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

I find that the complaint is well founded.  

Regulation 9 (5) provides:

“A decision of the adjudication officer under paragraph (4) shall do one or more of the following:

(a)     declare that the complaint is or, as the case may be, is not well founded;

(c)     require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i)      in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii)      in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,”

The maximum redress for a contravention of Regulation 4 is 2 years pay. The complainant had 23.85 years of service and was paid €751 per week.  The Complainant was paid statutory redundancy and therefore was at a considerable loss by the failure to pay her enhanced redundancy of 6 weeks’ pay per year of service. I am satisfied that it was a serious contravention of the Regulations and the maximum award of 2 years compensation is just and equitable in the circumstances.  I award the Complainant compensation in the amount of €78,104.   

Unfair Dismissals Act 1977, redundancy and dismissal Section 6, European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, Time limits, Contravention of Regulation 4.