Complainant

Respondent

Anonymised Parties

Employee

Employer (Transferee)

Representatives

Setanta Landers Setanta Solicitors

Michael McGrath TO ISSUE BY EMAIL TO: cases@ibec.ie

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-00042549-001

16/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042549-003

16/02/2021

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-00042549-004

16/02/2021

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-00042549-006

16/02/2021

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-00042549-008

16/02/2021

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-00042549-009

16/02/2021

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-00042549-010

16/02/2021

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-00042549-012

16/02/2021

The Complainant has submitted various overlapping complaints under the Transfer of Undertaking Regulations, the Unfair Dismissals Acts, the Employment Equality Acts, the Redundancy Payments Acts, the Payment of Wages Acts and the Terms of Employment (Information) Act. The matter in relation to the Employment Equality Acts has been withdrawn.

These Complaints have been submitted against the Respondent herein and  the Transferor jointly and separately. For the avoidance of doubt and eliminating all the various duplications, the relevant matters to be dealt with are ADJ-00032149 (CA-00042584-001, CA-00042584-003, CA-00042584-004 and CA-00042584-005) and ADJ-32026 (CA-00042549-001, CA-00042549-003 and CA-00042549-004).

In relation to this matter herein, CA-00042549-006,CA-00042549-008, CA-00042549-009, CA-00042549-010 and CA-00042549-012 are duplications and are withdrawn.

The Complainant was employed as a household support services assistant by the Respondent herein since September 2002 and has been on long term illness since 2017.

The Complainant submitted that whilst in correspondence with Irish Life in the summer of 2020 she was informed that her employment had transferred to the Respondent from  the Transferor (ADJ 32149) on the 18th February 2020.

On the 16th July 2020 the legal representatives of the Complainant wrote to the Transferor seeking details and documentation around the said transfer of employment and  in particular how her income payment  protection, which she was availing of, was to be treated under this new arrangement. A subsequent letter, seeking the same information, was issued on the 17th February 2021.

The Complainant submitted that she did not receive any formal notification from the  Transferor until the 15th September 2020 of the transfer of her employment on the 18th February 2020 pursuant to WRC Agreement C-164941-20.

The Complainant submitted that in the absence of any engagement from either Transferor or Transferee she was forced to file protective claims before the statute expired. The Complainant set out the circumstances as per correspondence with the  WRC on the 17th February 2021.

The Complainant submitted that she has demonstrated reasonable cause for the extension of time where she had not received any response to her enquiries from the Respondent or the Transferee,  she had an ongoing long term illness and this was also within the time period of the pandemic. Further, the Complainant submitted that the date of actual knowledge of the transfer was the 15th September 2020 and at that point the six month time period began to run for the lodging of said complaint.

The Complainant provide written submissions at the commencement of the hearing of this matter on the 23rd May 2022.

This Complaint was received by the Workplace Relations Commission on the 16th February 2021

The Respondents provided written submissions in relation to the substantive complaint  but  also raised preliminary objections to this matter proceeding to hearing.

The Respondent submitted the Complainant was part of a group of over 50 employees who were in scope to transfer to the Respondent herein on the 18th February 2020. Accordingly, on the aforesaid date  the Respondent took over household cleaning services in a transfer of undertakings from the Transferor and this was a first generation outsourcing from the client to an outsourced service provider.

The Respondent wrote to the Complainant on the 17th January 2020 informing her, inter alia, that under the transfer of undertakings regulations her employment will transfer to the Respondent and continuity of service will be maintained.

The Respondent wrote to the Complainant on the 23rd January 2020 notifying her of consultation meetings on the 29th and 30th January 2020 with the Respondent. However, the Complainant did not attend these meetings.

The Respondent wrote to the Complainant on the 30th January 2020 notifying her of another consultation meeting and informing her of the personal information required to set her up on the payroll system.

Prior to this transfer a number of conciliation meetings were held under the auspices of the WRC and the employees were represented at these meetings by their shop stewards and local officials. All relevant information in relation to the transfer was discussed and an ‘orderly transfer payment’ was paid to all those in scope to transfer which included the Complainant. The Respondent accepted that at the point of transfer the Complainant was absent due to her ongoing medical condition. However, the Respondent believed  that at the time of the transfer the Complainants spouse was a shop steward with the Transferor and her two children were involved with the Transferor. One of her children transferred to the Respondent herein and the other transferred to a separate transferee.

The Respondent submitted that although the Complainant was absent through illness they were satisfied that they had provided written confirmation of the transfer to her and that she was within the group of employees who were eligible to transfer.

Following the lodgement of multiple complaints by the Complainant on or about the 16th February 2021 the Respondent received correspondence from the Complainant requesting that they confirm that her employment had transferred and that her terms and conditions were preserved.

On the 2nd March 2021 the Respondent replied, inter alia, that they did not dispute the Complainants eligibility to transfer, proposed that they confirm the Complainants terms and conditions, arrange for a consultation meeting and discuss whether an occupational health assessment is required before a return to work. However, despite making requests to the Complainants legal representative the Respondent did not receive any correspondence which would enable them to set her up on their system. Further the Complainant did not provide any medical certificates to the Respondent and had been to unwell to meet as proposed.

The Respondent submitted that the Complainant has failed to demonstrate any reasonable cause for the failure to submit these complaints within the requisite time period. Further,  and without prejudice to the aforementioned preliminary objection, it is the Respondents position that the Complainants substantive claims are disputed.

In relation to the preliminary objection that these matters  are statute barred, it is necessary to examine the facts giving rise to these Complaints in light of the relevant legislative provisions. In that regard, Sections 41 (6) of the Workplace Relations Act 2015 provides:

(6) 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) states:

(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.

In relation to “reasonable cause” the Labour Court set out the test in Cementation Skanska -v- Carroll DWT 38/203 as follows:

 “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Each case will turn on its own particular facts and in this instant case, it will be necessary to (i) explain the delay and (ii) afford an excuse for the delay.

The Complainant accepts that she had not lodged her Complaint within the six month time frame but was relying on the aforesaid provision of Section 41(8) as she has submitted that her actual knowledge of the transfer of her employment was the 15th September 2020. Further, the Complainant is an individual who has severe health issues, which is accepted, and was on long term sickness leave and was availing of long term income payment protection. The Complainant set out this position as per her legal representatives correspondence to the WRC on the 17th February 2021.

However, the Complainant legal representative wrote to the Transferor on the 16th July 2020 and expressly stated “We are informed that [the Complainant] has transferred to the [Transferee] with effect from the 18th February 2020.” In the circumstances of this case, I am satisfied that the Complainant was aware of the facts and circumstances of her transfer of her employment on or before the 16th July 2020 and  to suggest that her actual knowledge of her transfer was the 15th September 2020 is not accepted. I am satisfied that the Complainant was aware of the transfer of the employment as relevant correspondence confirming same had been sent to her on the 17th January 2020, 23rd January 2020 and the 30th January 2020. Further, she was in receipt of an ’orderly transfer payment’ and it is noteworthy that her family members were also involved in the transfer.   

In relation to this preliminary objection, I am therefore satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time and accordingly these Complaints are not well founded.

I find that the Complaint (CA-00042549-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977 is not well founded.

I find that the Complaint (CA-00042549-003) made pursuant to Section 39 of the Redundancy Payments Act, 1967 is not well founded.

I find that the Complaint (CA-00042584-004) made pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No.131 of 2003) is not well founded.

Time Limits