Complainant

Respondent

Parties

William  Stokes

Celtic Linen Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Timothy Cummings Kirwan and Kirwan LLP

Robin McKenna 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-00053962-001

03/09/2021

The Complainant alleges that he was Unfairly Dismissed when his employment ended following his refusal to transfer to a new entity.

The Complainant is a 61 year old gentleman who has been employed by the Respondent since March 2009. He commenced his employment as an operative. After two years he moved over to the cleaning department. At the time of the transfer, he was a team leader in that department.

On 23 March 2021 he was called to a meeting with the four other employees in the cleaning department. Joanne Summers and Claire Byrne were in attendance. The Complainant was told that the cleaning department was being transferred to Bidvest Noonan. The Complainant asked if he could stay on with the Respondent but was told that he could not as there was no job for him. If he wanted a job with the Respondent, he would have to apply for one and would have to start at the bottom again and work his way back up. He was informed that if he did not transfer the Respondent would deem him to have resigned. This all happened over the space of one hour. After that Bidvest came in to talk to the employees. Following that the staff were given a letter thanking them for their service and wishing them the best of luck with the new entity.

The Complainant did not want to transfer. He formally refused on 14 April 2021. He went on sick leave on the 15th. He had a lot going on in is life at that time. His partner was ill, his father- in- law died and he too was suffering from mental health issues.  By letter dated 15 April 2021 the Complainant was given a further opportunity to reconsider his decision. He declined the opportunity.  

The Complainant got new employment in February 2022.

The Respondent was established in 1926. It is a family run business employing 306 employees.

On 23 March 2021 management met with the cleaning staff to advise them that the cleaning department was being outsourced to Bidvest Noonan with effect from 21 April 2022. The employees were told that their terms and conditions of employment together with their place of work would not change. Some of the staff had questions. These were answered during the meeting. This was all set out in a letter given to the staff after the meeting.

On 7 April 2021 a representative of Bidvest Noonan met with the staff that were transferring. The Complainant informed the representative that he was not going to transfer. That was conveyed to the Respondent. Ms. Claire Byrne and Ms Mairead Murphy met with the Complainant that day to try to understand what his concern was in relation to the move. During this meeting the TUPE was explained to the Complainant. He was again informed that his terms and conditions of employment would not change. The Complainant was annoyed and stated that he should have been given the “ heads up” about the transfer. He stated that he would remain on with the Respondent and would get some advice.

By letter dated 15 April 2021 from Ms Murphy to the Complainant, she informed him that there would be no change to his terms and conditions of employment or his place of work. The only thing that would change was his employer. He was also informed that “ refusal to transfer will amount to a resignation on your behalf”

The Complainant sent an emailed to Ms Murphy, Ms. Somers and Ms Byrne on 16 April stating:

 “After much deliberation on proposal of new contract, I have decided to decline the contract with Bidvest, continue with my Celtic Linen contract and not resign from my Celtic Linen contract”.

Ms. Murphy replied to his email stating “this is regarded as a resignation on your behalf and your contact with Celtic Linen will cease on Thursday 22nd April….”

Ms. Murphy, following correspondence from the Complainant wrote again on 20 April 2021 stating “ this is not a dismissal but a resignation on your part in not wishing to participate in the transfer….”

Again, on 26 April Ms Murphy set out the facts to the Complainant. At no stage did the Complainant change his mind.

Ms Joanne Somers gave evidence stating that at no stage when she was speaking to the Complainant on 23 March 2021 did she tell him that he would lose his job and would have to apply for a new position and start at the bottom of the pile. She did explain that there would be no change to his terms and condition of employment and in reality the only thing that would change was his employer and the name on the top of his payslip.  

The vast majority of the facts are not in dispute. The only real issue is whether or not the Complainant’s refusal to transfer to  Bidvest Noonan amount to a resignation.

The Complainant accepts that he was informed of the transfer and the consequence of same in a meeting on 23 March. He further accepts that he was informed by letter dated 15 April 2021 that failure to transfer would amount to a resignation. He clearly did not want to transfer and made that known verbally on 7 April 2021 and formally in writing on the 16th. He was given several opportunities by the Respondent to change his mind. They wrote on 15 April, 19 April but despite that,  he refused to change his mind. He was reminded on the 20 April and 26 April that he was not being dismissed but had resigned his position having refused to transfer.

Every employee has the right to refuse to transfer to a new entity. Every employer has the right to transfer some or all of its business to a new entity under the Transfer of Undertakings regulations. The law is well established in this jurisdiction that where an employer exercises its rights to transfer a portion of its business and an employee exercises their right not to transfer that they are deemed to have resigned.  In Rapier Contract Services Ltd v Adina Predut 2018 1 JIWC 1602 the Labour Court found “ The Court finds that the Complainant’s employment was subject to a transfer of undertakings and that she exercised her right not to transfer. The Court further finds that the Respondent’s letter of 4 January 2016 is no more than an advisory note setting out the effect her decision not to transfer would have on her employment with Rapier and does not amount to a letter of dismissal. Accordingly the Court finds that the Respondent did not dismiss the Complainant but rather that she terminated her own employment when she rejected the transfer under the TUPE regulations.”

Having carefully considered all of the evidence adduced together with the documentation submitted I am satisfied that when the Complainant exercised his right not to transfer over to Bidvest Noonan he, in doing so, terminated is employment by way of resignation.

Accordingly, the complaint fails.

The complaint fails.

TUPE, refusal, resignation, dismissal.