ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033852
Parties:
| Complainant | Respondent |
Parties | Tony Breslin | Trinity Motors Wicklow Limited |
Representatives | Stephen O Sullivan, BL instructed by Freehill Solicitors | Adrian Twomey, Jacob and Twomey Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
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-00044721-001 | 22/06/2021 |
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-00044721-003 | 22/06/2021 |
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-00044721-004 | 22/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044721-006 | 22/06/2021 |
Date of Adjudication Hearing: 8 July 2022 and 21 March and 27 April 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment ( Information)Act , 1994 and Regulation 10 of the European Communities (Protection of Employees ion Transfer of Undertakings) Regulations SI 13/2003, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
On 22 June 2021, the complainant, through his Solicitor submitted a number of claims to the WRC. The claims were directed towards two employers in the context of the transfer of undertakings, which occurred on 4 January 2021. At that time, the claims were stratified by the WRC into. ADJ 33852 and ADJ 33853 The remaining claims to be decided ADJ 33852 against the Transferee stand as: CA -00044721-001 Transferee CA-00044721-003 Transferee CA-00044721-004 Transferee CA-00044721-006 Transferee The conjoined cases of ADJ 33852 and 33853 came for Remote Hearing on 8 July 2022 in accordance with:
This was followed by an in person hearing in Waterford Courthouse on 21 March 2023. The case concluded on the Remote platform on 27 April 2023. At hearing on 8 July 2022, Counsel for the Complainant sought a realignment of CA-00044721-002, lodged as a claim for unfair dismissal against the Transferor in June 2021 to the Transferee. Both parties made oral submissions on the day. In light of the clear complexities in the case, I requested that the parties take some time to explore whether they could reach a mutually agreeable solution. This was unsuccessful. I was mindful that an earlier claim of unfair dismissal against the Transferee had been withdrawn pre first day of hearing. I canvassed submissions from each party on this matter and considered the points made by both. On January 12, 2023, I wrote to the parties and declined the request: I have no desire to make things more difficult for the parties, but I have been asked to decide whether the Respondent name in ADJ 33853 (CA-00044721-002) can be amended to reflect the Respondent name in ADJ 33852
In reaching a decision on this point of clarification, I have decided that the ADJ 33852 and ADJ 33853 should remain in their present legal construction and the cases should proceed in the presence of both respondents within the shortest possible time frame. ADJ 33852 Will comprise CA-00044721-001, CA-00044721-003, CA-00044731-004and CA-0004721-006
ADJ 33853
Will comprise CA-00044721-002
My reasoning for this approach follows the seminal case of Travel Lodge Management ltd v Sylwia Wach, EDA 1511, 2015
On January 26, 2023, the Complainants Solicitor, having read my response, withdrew CA-00044721-002 and ADJ 33853 was then closed.
The instant case proceeded on two days of oral hearing. Mr. As evidence was presented on a laptop on day 1 to facilitate his live work commitments. I am grateful to the Complainants Solicitor and to the Staff at PRU who facilitated this. I am also grateful to the Respondent Solicitor in that regard. Both parties made extensive legal and oral submissions in the case. I wish to acknowledge the expert approach adopted by both parties for their respective clients in this case. At the conclusion of the hearing, I requested further detail on the job advertisement for Head of Sales, the post held by Mr. Z from March 2021.I received this advertisement dated 8 February as Head of Sales Wicklow. The Complainant furnished their response on 8 May 2023. I have had regard for both communicated positions. |
Summary of Complainant’s Case:
The Complainant was employed as a Brand Manager and Head of Sales in a Motor Business, Sinnott’s Auto ltd, at the time of a transfer of undertakings on 4 January 2021. He had worked continuously with the Transferor Sinnott Autos from June 1996. Terms and conditions were furnished in May 2018
On 14 December 2020, the complainant received notification of an impending transfer of undertakings to occur on January 4, 2021. I have taken an extract from that letter for illustrative purposes. We are delighted to announce the sale of our VW and Skoda Dealerships to the Murphy Family of Trinity Motors Group, who like Sinnott Autos, are a 2nd generation family business. The transition, effective from 4 January 2021, will be seamless and will not affect your position. Under the Transfer of Undertakings Directive of 1977, (which safeguards employees’ rights) your employment will transfer to the Trinity Motor Group and your current employment terms and conditions with Sinnott Autos ltd will carry forward, including your length of service, effectively meaning that there will be no changes in your employment terms. The Respondent presented a document which incorporated revised opening times on 19 March 2021, which the complainant signed post the transfer of business. Counsel for the Complaint submitted that Regulation 4, TUPE Regulations prohibits a contracting out of the complainants’ rights. The working hours were changed.
CA -00044721-001 My new employer did not observe the terms and conditions transferred from my previous employer. CA-00044721-003 The new employer did not consult in relation to the transfer. CA-00044721-004 The new employer did not advise me in relation to the transfer. CA-00044721-006 I was not notified of a change to my terms of employment. Summary of written submissions:
Mr. O Sullivan, Counsel for the Complainant expressed his dissatisfaction that the Respondent was placing the Complainant on proof of TUPE in the circumstances of this case. He read through his prepared submission on the second day of hearing. He outlined that the complainant had been exposed to a radical change in his working role and function following the takeover of the business in January 2021. Before the Transfer, the Complainant was introduced by the Transferor on the Business card as Sales Manager After this, the complainant acknowledged his approval to change his working hours but not in the context of section 5 of the Terms of Employment (Information) Act, 1994. He experienced a decline in his seniority on the appointment of Ms. Y, a business manager and Mr. Z as Head of Sales. A comparative analysis was undertaken between both staff handbooks of transferor and transferee. Mr. O Sullivan contended that the complainant was exposed to a probation clause in the Transferee handbook and approached to go Commission only, which he refused. He was also advised of a new mobility clause. These were seismic changes. The Complainant was surrounded by a pronounced exodus from the previous sales team. The Complaint discussed the difficulties that he was experiencing with Mr. C on 21 April 2021, but this did not resolve matters. There was no plan to expand the work force until October 2021. The Complainant commenced sick leave on 29 April 2021 and submitted a grievance. He was keen to engage in a resolution. He was referred to Occupational Health Service. On 29 April 2021, the respondent sent a letter saying the issues would be dealt with when the complainant was fully recovered and returned to work. On 10 May,2021, the complainant tendered a medical cert to say that while he was unfit for work, he could participate in the grievance. The Respondent continued to link a resolution with a return to work. On 18 May 2021 the complainant was requested to attend an Occupational Health Service to ascertain his fitness to engage in a grievance during sick leave. There was no response to the grievance and the Complainant resigned his employment on 24 May 2021. The respondent requested the complainant reconsider his resignation and continued to link occupational health to processing the grievance. The complainant returned the company cars and said his goodbyes. Counsel submitted that the complainant was not aided by documentation prepared by the respondent, from where he could understand TUPE. This was not resolved by the very brief letter issued by the Respondent on 14 December ,2020. Counsel clarified that this case was not built on the ETO argument …. He submitted that the Respondent had not complied with the GDPR request which was submitted by the complainant. He argued that Brand Manager / Head of Sales should have been indistinguishable. Counsel argued the application of Regulation 9(1) and 9(2) Counsel sought compensation as a remedy.
CA -00044721-001 My new employer did not observe the terms and conditions transferred from my previous employer. The Complainant contends a breach of Regulation 4.1 and 4,.2 of SI 13/2003 ETO reasons are not a defence to a change in terms and conditions. CA-00044721-003 The new employer did not consult in relation to the transfer. The Transferee did not comply with Regulation 8 of the TUPE regulations. CA-00044721-004 The new employer did not advise me in relation to the transfer. CA-00044721-006 The complainant submitted that contrary to Section 5 of the 1994 Act, he was not notified of a change to my terms of employment within a month of the change. Annual leave, hours of work, correct legal entity, changed role.
Evidence of Mr. A Sales Representative, 18 years, Sinnott’s, (Affirmation) (Remote presentation) Mr. A had been with the Transferor for 18 years. He learned of the impending transfer by letter from Sinnott’s and verbally in January 2021. He carried a high level of VW and Electric Car knowledge and operated as a Brand Ambassador amongst a sales team of four. Mr. A recalled that he had not agreed to the proposed newer work schedule. He had not been denied annual leave in July and went on leave during April 2021. He outlined some detail on the 10-day discretionary days off mid-week, during the quieter months. He referred to the upward alignment in business post covid related lockdown. He described that car finance had previously been managed by the complainant and Mr. R before Ms. Y arrived. He submitted that secondhand car pricing was taken over by the respondent Director and Mr. D, previously the complainant had overseen the pricing.
Mr. A was graphic in his description of a changed work atmosphere during the weeks after the move. He said things became “harder and harder “as 6 staff left key areas. They were called on to help other areas and he described the atmosphere at horrible. The Sales Manager at Skoda left. Stress level began to rise, and he began to have concerns at the way the business was being run. He said “It wasn’t a pleasant place “ He was medically advised to take time out in response to his anxiety and blood pressure. He decided to leave and consider a different career. He distinguished himself from the complainant saying that the complainant had worked at a higher level to him as Head of Sales.
During cross examination, he responded to Mr. Twomey’s questions on what he understood was the makeup of the two dealerships with VW and Skoda franchise. He confirmed they were housed in two separate buildings but did not know about the two separate companies. He was assigned to VW, but helped at Skoda, if busy. He confirmed that the Sales Manager at Skoda and the Sales rep at VW, Mr. R had good working relationships. He confirmed that both employees left before he did. He was unsure if he had had discussions with them, but told Mr. Twomey that they probably felt the same as he did in being unhappy at work and seeing that “everything had changed “ He denied that he had discussed redundancy with either the complainant or Head of Sales at Skoda, but he had been informed by Mr. O He had been unsuccessful. He said that he could not recall if the complainant had discussed it with him as it was a fading memory but as far as he could recall, it was a conversation with Mr. O in the Sales yard. He did not recall amounts discussed. He clarified that Mr. R was the sole redundancy he knew about.
Mr. Twomey worked on the job title conveyed on the complainant. Mr. A said that VW changed titles and the complainant was confirmed as sales manager “at the finish “. He gave examples of variants in role titles applied by VW. While with Sinnott’s, the complainant was his boss, with only a member of Sinnott family more senior to him. He reaffirmed that the complainant was known as the Sales Manager
He submitted that the conduct of his work in sales, stock, variations would normally be run through Mr. Breslin, the complainant as Head of Sales, but this changed after the transfer.
Pre VW, Mr. A was a Product Specialist, another title was electric vehicle specialist and another a brand ambassador. He was then more specific when he described his role during his tenure as sales executive and the complainant as sales manager. He was unsure of the staff allocation at VW but contended a 5-7 reduction front of house over a 7/8-month period. New hires also left. He agreed that there were 35 staff across Sinnott’s. He clarified that the sales role far outweighed sales but was also comprised of product knowledge, IT and technology of product. Mr. A confirmed that he had been requested to change his hours on 3 occasions by Mr. C but refused. He was unaware that sales staff across the company had suggested the change. He recalled a short meeting before the take over which occurred in the canteen. He confirmed that the staff did not have an identified staff representative.
Mr. A addressed the 21 April meeting, where manpower shortages, car loans, risk of errors, customer concerns and challenges in time management were discussed. Mr. C kept comparing the site to Wexford which “did ok “on the same numbers of staff. Mr. A reaffirmed that the key topic was workload and lads in Wexford worked to 10pm. He had no recall of any discussion on annual leave. He had taken one weeks leave himself. He accepted that there was no complaint of annual leave. He had no recall if job title had been discussed. He had not seen the minutes of April 21 as presented in the respondent papers. He understood the action plan was compilation of a business case for a qualified salesperson to replace one of the previous owners and Mr. R. He confirmed that the augmented numbers of supports added by Trinity Motors had not eased the workload. He became ill towards the end of the Summer and recalled the complainant being on sick leave during March/ April He recalled that Mr. D oversaw everything in Sales, and all reported to him. His own Sales Team had shrunk from 4 to 2. He clarified that he had a previous operational experience of TUPE in a Hotel setting in 1989.
Evidence of the complainant The complainant gave direct evidence of working for the Transferor as Head of Sales and Brand Manager for VW from 1996. He gave evidence of working 9.30 am to 2 pm every Saturday, which was busy. He said that he always received his 10 days as time in lieu. He referred to the Transferors handbook and the Sinnott’s contract. Mr Breslin confirmed that he had been notified of impending change at the business on 14 December 2020, but that there was no follow up. He stated that no reference had been made to enduring retention of terms and conditions going forward. The 10 days in lieu were not committed to writing. By March 19, 2021, Mr C proposed an upward alignment in working hours to ensure all dealerships operated the same. The Complainant had not secured legal advice but accepted the less favourable change, as he wanted to fit in. The complainant denied that the change was more favourable for him. The Complainant described the period that followed his new employment as his believing that he was no longer head of sales as the role was usurped by one of the owners, who undertook pricing structures and Mr C. He had a brief meeting with Mr C in February 2021 where new targets were set at 300 per annum. Previously, the complainant had reported directly to the owners of the business, two brothers. Now, however, he was referred to an unnamed new head of sales who then commenced after St Patricks Day, 2021, as Mr Z. He contended that the chain of command had also altered and with the appointment of a business manager Ms Y, he observed a diminution in his own role. The Complainant recalled that a colleague, Mr R, was not recalled back to work with everyone else in January 2021. By 12 March 2021, Mr R told the complainant he wasn’t coming back and had been terminated. Work became different and busier and when asked if anyone reported to him, the complainant replied that he was expected to run things past one of the owners, Mr G and Mr C as they started taking the calls. His finish times became irregular and unpaid at 6/7 and 8 pm while it was 6pm with the Transferee. He said he became stressed. The Complainant had been salaried during his tenure with the Transferor and vetoed a request by Mr C for him to go “commission only “
He did not have sight of a revised organisational chart post transfer.
The Complainant recalled that he had previously taken his annual leave during the second week of July for 24 years, whereas the Respondent handbook restricted this, and this was a problem for him. He had been Head of Sales, VW, now Mr Z was over Skoda and VW Sales for the Respondent. Another Sales Manager for Skoda, Mr O, who reported to the General Manager had resigned. A member of the Sinnott family (VW) had also left before the takeover. The General Manager at Skoda had left before the takeover. Mr R, a member of the VW sales team told him that he had been terminated. He had adopted a helping role previously if the Skoda section asked him to help. now, Mr Z was over it all, 150 yards apart. The Complainant was unaware of any due diligence completed pre-sale. The new handbook contained a mobility clause, not previously a consideration for him. The Complainant told the hearing that he felt rudderless along with Mr A in the changeover. He had initially felt welcomed with “smiles and handshakes “but the Respondent family were now dominant and Mr C, as General Manager was not available to him. He contended that he had been reduced to the same level as Mr A at the business. He confirmed that the meeting which occurred on 21 April 2021 was not followed up by minutes. He sought legal assistance and confirmed that his health was good then but stress intervened. Ms Y was appointed in a Finance role. She held the same qualification in credit and replaced him in the role, where he had “been the only one to advise on finance “. His role on pricing second hand cars was usurped by Mr Z and he was referring customers to him. The Complainant submitted that with finance and pricing gone, he maintained that his role was reduced to that of a “meet and greet “ This situation prompted the 29 April 2021 letter. He felt it necessary to take himself out of the environment as he was anxious and not sleeping. He was deemed fit to engage in management of this grievance and was requested to attend a grievance meeting, but he did not trust the respondent. The Complainant confirmed that he had not been met with a formal plan to address the grievance. He confirmed that he was angry with the respondent. He denied that he had sought redundancy and said that it was never mentioned. He stated that he could not function at work, and he did not like the way the respondent worked. Mr Breslin confirmed that he had not been met with a respondent issue of terms and conditions and an assurance of their continuance. He recalled that flippant remarks on changes to Saturday working were made by the Respondent Directors during the first week of transition in employment. In referring to pages 5/14 of the staff handbook of the Transferor, the restriction centred on two weeks of July for annual leave, not the entire month. He confirmed the presence of a probationary clause in the respondent booklet. The complainant submitted that it was his decision to resign. He had sustained a loss of income to €41, 604.27. 6-7 others also left out of the 35 who made the transition. This stood in contrast to a zero rate of attrition with the Transferor. During cross examination, The Complainant addressed Mr Twomey’s question on job title by stating that he was Head of Sales / Brand Manager as set out on his contract of employment. He added that Mr A had been mistaken on his description. He responded that the business card exhibited by the Respondent had been given out “years ago “to customers by the Transferor as Tony Breslin, PIB APA (Consumer Credit) Sales Manager He went on to submit that his official title in 2018 was Head of Sales, this meant Head of Whole Sales. His reference point was the dealer, and this role was assigned to Mr Z, to whom he became an adjunct figure. He then had to refer sales to Mr C and the Company Director, Mr G. He explained that the titles of Head of Sales and Sales Brand Manager were indistinguishable at Sinnott’s, the Transferor. He explained the origin of his access to two cars for domestic purposes as arising from a pay reduction in 2008/9. BIK applied and Sinnott’s managed everything else. There were no other benefits in the form of tax. He accepted that the 10 days as time in lieu was not discussed with the respondent, as he had not stayed on long enough. He had neither applied for nor had been refused annual leave in July. Mr Twomey raised the parallel presence of two staff handbooks and the complainant confirmed that he had read both books and noted the variations. In relation to the timing of the change, he confirmed that one of the Sinnott brothers had signalled change as far back as October 2020. VW, present at Sinnott’s since 1987, had communicated that a new dealership was taking over the business. He learned that there was an anticipated cull on dealer networks. Skoda was not mentioned. By late November, Sinnott’s confirmed the sale of the business to him.
He confirmed that he was informed of the change on 14 December 2020 at a meeting convened by Sinnott’s. He said he met Mr C in the Sinnott’s office and asked if people were being let go or placed on different contracts? Mr C told him that the Respondent was taking on all staff as per contract. This piece prompted a pressure point at hearing. The complainant clarified that he had asked for clarification on redundancy or a difference in contract for all, not himself alone. He accepted that he had attained security of employment. He accepted that his working hours were not changed against his agreement. He acknowledged that he had not obtained legal advice prior to the change as he didn’t think he needed it. The complainant said he was aware that Mr O and Mr A had objected to the change. He recalled the year 2020 corresponded with covid and the covid pandemic payment was paid for 8 weeks. The Respondent did not play him off and he worked January -April 2021 as despite lockdown, there were still a cadre of callers, albeit of a reduced amount supplemented by online and phones contacts to the business. Mr R was laid off at on the first Friday back. That reduced the sales team to 2, he and Mr A. He recalled the 21 April meeting and he identified that another salesperson was needed as sales were rising post covid. In response Mr C was keen to extol the efficiencies of the Wexford team. The complainant countered that Wicklow sales exceeded Wexford. He understood the plan was to make a business case for another salesperson. The Complainant clarified that Mr A had requested the meeting to back him as by then, the sales role and finance role had been taken from him. He said that he wasn’t sleeping, was agitated and sought legal advice. He recalled his first visit to his doctor was on 26 April 2021 which was followed up with the medical report of July 22, exhibited. Mr Twomey focussed his questions on the short duration of time to furnishing of the grievance on …. The complainant struggled with his recollections over the 2-year time lapse. Mr Twomey put to the complainant that the Respondent in the form of Mr C reached out and offered assistance to him. The complainant conveyed that by then he was really struggling with his diminished role. Mr Z was based in VW site most days. The Complainant replied that he came in to take over from him. He said that he did not agree to return to work, and it was no consolation to him to be offered time by the respondent. He said that the stress eased as he stayed out of the job. Mr Twomey used a footballer analogy to place Wexford and Wicklow as “one fit “the complainant re-affirmed that Mr Z had taken over and replaced him. He denied seeking to work towards extracting a payment via redundancy. In redirect, the complainant confirmed that he did not have a contract as sales manager. There was no organisational chart which incorporated Mr Z. The Complainant described his role as reduced to deliveries rather than his habitual delegation. The Complainant confirmed that he approached Mr Z during the Wednesday or Thursday after the 21 April engagement on workload. Mr Z told him that nobody would be taken on until at least October and he should “come to him “to discuss things. He said that he protected his job by leaving. He had not been paid for the additional hours worked. In seeking a clarification on why he chose not to attend Occupational health? he replied that he had lost trust. In addition, the complainant did not share the respondent enthusiasm for cosmetic office changes post transfer. He was non plussed when asked if these changes helped? In trying to probe on the relevance of Mr R in the case? the complainant clarified that he learned that he had been reported as having been made redundant without associated reason, but when he met Mr R himself in a supermarket, he told him that he had been “let go “and compromised a case with the respondent. Neither party put Mr R or indeed Mr Z forward as witnesses in this case. |
Summary of Respondent’s Case:
The Respondent operates a Franchisee Motor Business across a number of locations and was incorporated on 11 November 2020. All four claims are disputed.
The Respondent described commencement of trading on 4 January 2021, following the award of the VW franchise for the county of Wicklow and the movement of 35 staff previously employed by Sinnott Autos ltd, the previous holder of the VW franchise. The Respondent purchased the Sinnott Autos limited premises. The Respondent did not introduce this commercial transaction as a business transaction under the Transfer of Undertakings Legislation (TUPE) This was met by considerable criticism by Counsel for the complainant. On the second day of hearing, Mr. Twomey for the Respondent categorised the business transaction as that of a business transaction covered by the TUPE Regulations.
By way of background and in summary of the Respondent submissions, Mr. Twomey confirmed that Mr. Breslin, the complainant commenced work at Sinnott Autos on 18 June 1996, followed by a short statement of terms and conditions of employment on May 1, 2018. A staff handbook was also provided. The Complainant worked full time with a basic salary of €66,560 for 5.5 days per week, inclusive of Saturday working. The complainant resigned, without notice, 4 months into the new employment, in the aftermath of one month of sick leave and without agreement to reconsider his resignation. He had not reverted to Mr. C in the aftermath of the April 21 meeting. Mr. Twomey outlined that the complainant received a copy of the Trinity Motor Group Employee handbook on commencement with the Respondent employment. There was no diminution of his terms and conditions of employment. The Business was in transition and proposed revised opening hours, earlier start on weekdays and 10 am to 4pm on Saturdays in March 2021. A time in lieu system was also proposed to reflect the changed operating times. Both were agreed with the Complainant and manifested as a reduction in working hours from those with the Transferor. The only change arose in relation to the working hours, and these were agreed subsequent to the transfer. There was no obligation on him to agree. It was the Respondent case that there were no measures envisaged for employees and the respondent was compliant with Regulation 8(1) in relation to the issuing of the letter of transfer.
Mr. Twomey confirmed that the Respondent was unaware of any difficulties being experienced by the complainant until Mr. A sought-out Mr. C, at 9.15 am on 21 April 2021 to meet with both he and the complainant. The meeting occurred at 10.30 am. Both the Complainant and Mr. A highlighted that “they were too busy in the sales department “They were informed that additional staff would be hired, if necessary. Discussions on workload management ensued and the Sales Team were to revert to Mr. C. The Complainant proceeded on medically sanctioned sick leave from 26 April to 14 May 2021. He did not return to work. On Friday 29 April 2021, the Complainant submitted a written grievance with hallmarks of legal construct. The letter set out that the complainant was operating in a post TUPE environment. He contended that: 1 His role as head of sales had been completely diminished. 2 Requested to do menial tasks on out of hours communiques. 3 reductions in staff from 4 to 2 on the sales team 4 working hours changed. 5 changes in annual leave over month of July, access to two weeks and cover requirements 6 A Business Manager had taken over financial sales, Ms. Y. 7 New Head of Sales for VW to whom the complainant was answerable, Mr. Z. 8 Authority to price and evaluate trade ins subsumed by Mr. Z
The complainant stated that “the actions have had a considerable negative impact on my mental health. I am currently certified as unfit to work due to stress “he flagged a risk to his health and safety.
Mr. Twomey placed the Complainant on proof of a transfer of undertakings within the 2003 Regulations. Mr. Twomey submitted the respondent position that the complainant desired an exit through redundancy and felt entitled to one and was unhappy when he was not made redundant. He did enquire from Mr. C on whether a redundancy situation arose? and was informed no. He then exited through “the back door “
Mr. Twomey submitted that there was no substance to the 4 live complaints. Minor differentials existed in the handbook at a de minimus level. The matter of the GDPR was not relevant as it was not related to a claim.
CA -00044721-001 The Respondent disputed the claim that the respondent had not observed terms and conditions transferred from the Transferor. The Respondent denied that a diminution of terms of conditions occurred post transfer. The Complainant placed insufficient weighting on his own absence from the workplace set against the respondent commitment to address the April 29 grievance on the complainants return to work. The Respondent was denied a clear opportunity to resolve matters. CA-00044721-003 The Respondent denied a contravention of Regulation 8.1, 8.3 and 8.4 Regulation 8.1 The Respondent was incorporated in November 2020 and did not have a cohort of employees to whom it could have been required to give information in advance of the transfer. The Complainant has acknowledged that he was informed of the transfer by letter dated 14 December 2020. It was not reasonably practicable for the respondent to issue. There were no measures envisaged on transfer which obligated consultation. In relation to 8.1, Mr. Twomey submitted that the complainant was relying on Regulation 5 (3) on whether a substantial change in working conditions to the detriment of the employee concerned. This was disputed by the respondent witness, Mr. C. He added that the respondent was relying on Regulation 5(2) ETO grounds and the complainant was unreasonable without affording the respondent a reasonable opportunity to address his stated concerns. In relying on ADJ 3816, A Restaurant Manager v A Restaurant, incorporating Finnegan J in Berber v Dunne’s Stores [2009] ELR 61, Mr. Twomey pointed to the Adjudicators decision on finding that a Constructive Dismissal had not occurred. “… his own conduct also falls below the standard required of an employee in respect of exhausting available remedies for any complaint he had, which on the basis of the evidence, would have been very difficult to stand up. However, he did not avail of the opportunity to do so. “ Mr. Twomey sought that the complaints under TUPE Regulations should be dismissed.
CA-00044721-004 The Respondent denied a contravention of Regulation 8.1, 8.3 and 8.4. Duplicate claim The Respondent was incorporated in November 2020 and did not have a cohort of employees to whom it could have been required to give information in advance of the transfer. The Complainant has acknowledged that he was informed of the transfer by letter dated 14 December 2020. The respondent did not have employees prior to 4 January 2021. There were no measures envisaged on transfer which obligated consultation.
CA-00044721-006 Term of Employment The Respondent has disputed this claim and contended that there were no changes in the complainants’ terms and conditions of employment save on
1 page 69 of the submission, document of principal duties signed on 13 January 2021 2 page 70 of the submission, document of agreement to change working hours, signed by both parties on 19 March 2021. I understand and accept the changes to the opening times of the business and agree to adhere to the changes. Mr. Twomey focused on the mention of a projection on redundancy in the complainant’s submission and pointed to the complainants’ own aspirations towards an entitlement in that regard in that regard. However, a redundancy situation did not occur.
Evidence of Mr C Dealer Principal and Chief Operations Officer (oath) Mr C has 30 years’ experience in the Motor Business, 5 years with the Respondent. He gave a useful background of 2 separate dealerships where two separate companies were incorporated on November 20, 2020. He stated that the Respondent won the right of franchise for Skoda and VW and bought the Transferor premises. 1 Trinity Motors Wicklow 2 Brno Investments ltd T/ A Trinity Skoda ltd He outlined the history of the business, which commenced in Wexford in 1995 and comprised 7 brands over 2 counties. Once the right to trade was won and the transferor building sale concluded, the next course of action was to TUPE the staff. Protracted negotiations followed alongside a company director but “everything was closed “in December 2020. Agreement was reached with Sinnott’s on 16 December 2020 and signed details of the change were furnished to the employees on 17 December. On 18 December 2020, together with the company Director and Sinnott’s, Mr C met with all the employees across Skoda / VW at Sinnott’s. He recalled the complainant being there. At that time, the Skoda section was closed and a skeleton staff in VW. He briefly explained TUPE and that employment and pay was being protected. He assured the staff that the respondent would be there in January. This was the first venture of TUPE for the company. Mr C explained that he had replaced one of the Sinnott brothers. He outlined the changes that underlined the transition from Sinnott’s to Trinity. He understood that one of the family members may have been made redundant, but the respondent was not involved as it was not a detail of the transfer. On transfer, there were 29 full time staff and 3 part time. This subsequently rose to 50 staff and stands at 100 staff across the dealerships. Mr C confirmed that the 14 December letter to staff meant no changes to terms and conditions in 2021. The Complainant did not express any concerns to him. He stated that “I understood his role as Sales Manager or Brand Manager “ There were three dedicated staff at Wicklow VW 1 the complainant as Head of Sales 2 Mr A, who had referred to his boss as Sales Manager 3 Mr R The volume of cars was lower at Skoda, but leads were equal as Sales Managers. Ms Y, appointed in Finance/ Insurance had since left. The Respondent planned efficiencies in the new business, this manifested in painting offices, deep cleans, lighting, improved workshops, refurbishment of the forecourt. This was a major investment as sales were being “tidied up “. The objective was to secure the employment of staff. The technical staff were provided with new uniforms. Mr C first realised that the complainant had a problem on 29 April 2021. He confirmed that he had a short meeting with Mr A and the complainant on April 21, 2021.He said he prepared a personal note of 7 bullet points for the purpose of taking legal advice. This meeting was led by Mr A and there was no agenda. The subject matter focussed on workload being “beyond what they could cope with “He said he was happy to listen, asked them both to reflect as he did not believe another sales rep was needed. He denied asking the complainant to compile a business plan but rather asked him to consider making a business case, which was a simple desk top exercise. This was because, the process had changed to an emphasis on sales and taking away finance, reduction in extended time with customer, and no photography.
He recalled that the grievances that followed had not been heard before. He was shocked as the complainant had signed his agreement to transfer on 13 January 2021, 9 days after the takeover, where there no issues raised on the job title. The revised working hours were put forward as a suggestion by the Wexford dealership and was placed for consideration of the Wicklow staff. Two remained on the existing hours and Mr …. And Mr A. The Complainant had signed his agreement. Mr C denied that her complainant was stripped of his duties. He said that he was well regarded at the company, and this was visible when his office was enhanced. Mr C recalled Mr R as being on temporary layoff prior to take over. He worked one week and recommenced on temporary layoff. He was then made redundant by a director on 2 years’ service on the LIFO principle. The Head of Sales at Skoda resigned in April 2021 following his unsuccessful exploration of the potential for redundancy. Mr C submitted that he believed that the complainant planned his exit. He saw that sashes were prepared for steering wheels on Saturday, rather than the night before release. This for him, at least demonstrated a planned exit. He expressed a disappointment that issues which he viewed as solvable were not teased out between them. He requested occupational health second opinion to validate a safe approach. He was broken hearted by the complainant’s resignation and tried to stall it. He denied that TUPE varied the complainants’ terms and conditions. The job title was not diminished the respondent was following a best practice model. The introduction of Mr Z as Head of Sales on 22 March 2021, in the second named business, addressed a support for Mr C and the complainant did not raise any issue with Mr Zs job title from his start in March 2021. The Complainant was acquainted with him. The position was advertised in February 2021 and carried a purse of €100k, €65 plus bonus. Mr C confirmed that the Business Manager was added with input of Directors. He denied a lack of support for the complainant. He denied refusing him annual leave. He said that he did not know anything about a planned sales hire in October 2021. He disagreed that the complainant was “rudderless “ He confirmed that out of 9 leavers post transfer, that 2 staff returned and 3 others re-applied. This is indicative of challenges in the Motor Industry.
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Findings and Conclusions:
I have been requested to consider the facts as raised, evidence adduced and written submissions as advanced by both parties enroute to making a decision on all four live claims at the end of this long running case. Three claims stand under the TUPE Regulations, SI 131/2003, which emerged from Council Directive No 2001 / 23 / EC, 12 March 2021(Acquired Rights Directive), relating to the protection of employee rights on transfer of undertakings, businesses or part thereof. It is important, particularly in the context of the letter dated 14 December 2020, attributed to the Transferor in this case, to acknowledge that the Directive adds to and consolidates the 1977 Directive,77/187/EEC and the 1998 Directive, 98/50. One claim stands under the Terms of Employment (Information) Act, 1994.
I have engaged in these deliberations against a complicated employment relationship. I have made my decision after much consideration. I apologise for the delay in completion.
Claims under TUPE Regulations SI 131/2003 Prior to recording my findings in these claims, I would like to set out.
1 My jurisdiction in the case 2 Did a transfer of undertakings occur in this case by operation of law?
The words safeguarding of employee rights in the event of transfer of undertakings comes straight from Directive 2001/23/EC. The purpose of the Directive at individual level is to provide for the protection of employees in the event of a change of employer and a knock-on safeguarding of rights at set out in Recital 3 At Collective level, it aims to maintain the employment conditions based on collective agreements.
A transfer of undertakings is defined by the Directive at Article 1 as: - Transfer of an economic entity which retains its identity, meaning an organized grouping of resources which has the objective of pursuing and economic identity whether or not that activity is central or ancillary. Suzen C-13/95, Rygaard C-48/94 The seminal case of Spijkers C-24/85 sets down the key criterion of assessment for a transfer of undertaking. Type of business Transfer of tangible assets Value of intangible assets at transfer Take over of majority of staff (Transferor) Transfer of customers Degree of similarity between activities carried out before and after the transfer. Whether a period of suspension occurred?
Mr. Spijker was an assistant manager at a slaughterhouse, who claimed that his employment should have transferred alongside others on sale of the business. The past employer had ceased trading and there was no goodwill. The ECJ held that a mere transfer of assets did not constitute a transfer and set down the criterion to be considered in the round in seeking to establish a transfer within the meaning of the Directive.? The Labour Court in this jurisdiction in Bidvest Noonan (ROI) and Martina Lynch considered what amounts to “an economic entity “in the context of a transfer of undertakings scenario. On that occasion, the Court did not establish the occurrence of a transfer governed by the TUPE Regulations.
It is worthy of consideration in this case that a considerable period of time was expended by the Respondent on placing the complainant on notice that an activity governed by the TUPE Regulations actually occurred. This caused some disappointment within the complainant delegation.
I found this symptomatic of a dearth of specifically focused conjoined discussions on the topic of transfer both pre and post the transfer. The reliance on the 1977 Directive in the letter dated 14 December also suggests a vacuum in understanding of the Transferors understanding of their obligations. However, this case is not directed at the Transferor.
I wish to note that this opaqueness is not unusual in the world of employment law in this country as very adeptly captured in the EAT case of Moran v Bloxham’s Stockbrokers UD 377/2002, in advance of the transposition of the Directive into Irish Law:
“On the evidence of all the parties there was no suggestion at the time that this was meant to be a Transfer of Undertakings situation and in fact this concept appears to have been made known to the parties on the institution of these proceedings “
What commenced as an intended safeguarding measure at European level has proved a contentious issue in this case. While there is no claim for statutory unfair dismissal live before the Transferor or Transferee, having both been withdrawn, the complainant has approached this case pleading a total lack of perceived safeguarding in his employment to the point where he says he felt compelled left as a consequence. Counsel for the Complainant has reached for the application of Regulation 5 here and this is completely opposed by the Respondent.
The Respondent completely refutes this and instead chronicles a dynamic commercial reality of takeover, improvements, expansion and commercial viability in the motor industry. This was strongly reflected in Mr. C’s evidence on the expansion in the workforce post take over to a cumulative 100. The Respondent argued that no messages were envisaged for the complainant on takeover, In their description, the Respondent adhered to the spirit of Article 16 of the Charter of Fundamental Rights of EU, 2012 Article 16: Freedom to conduct a business. The freedom to conduct a business in accordance with Union law and national laws and practices is recognised. Alemo-Herron v Parkwood Leisure Ltd (Case C-426/11) Which considered whether the circumstances of whether the terms of a collective agreement on pay entered into past the date of transfer and not participated in by Parkwood could be interpreted as protected by transfer of undertakings? It was held by ECJ that it was not.
Abels v Administrative Board of the Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie “… the Directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the transferee under the same conditions as those agreed with the transferor. They are intended to ensure that the employment relationship continues unchanged with the transferee”. (C-135/83) [1985] E.C.R. 469 and Foreningen af Arbejdsledere i Danmark v A/S Danmols Inventar (C-105/84) [1985] E.C.R. 2639.
For me and to use a motor industry term, the parties presented their case in completely different lanes on the consequence of the January 4, 2021, date of transfer. Yes, there was agreement on date of transfer and eventually that a transfer of undertakings had occurred but the seismic gap between the parties seemed to me to manifest itself on how the parties viewed the immediacy of the post transfer setting. For the Respondent it was a new dawn, an opportunity to grow the business and a first endeavour in acquisition of business, which has since yielded a success. For the complainant, it signaled a fragmentation in his standing in the work setting. By his own admission, he was centrally poised in the patriarchy of Sinnott’s but described himself as “rudderless “in the new business. He did not regain his standing before he resigned. I was particularly struck by the complainants non plussed response to my request for clarification on whether he had seen benefit in the respondent investment in the business, inclusive of having his office redecorated? I found the complainants response, both verbal and nonverbal went to the root of this case. I accept that he was struggling to belong.
A transfer of undertaking protection has at its very heart protection, stability and safeguarding, alongside opportunity to develop and thrive. In a family law context, it strikes me as very similar to an adoption as opposed to fostering. In a transfer of Undertakings, Edwards J has clarified in the High Court case Symantec Limited v Leddy and Lyons [2009] IEHC 256 that a refusal to transfer employments is not covered by any particular next step pathway. In that case, it was held that no change in terms of employment occurred and claims for redundancy were unsuccessful.
The Complainant has depicted his recollection of trying to fit in amongst a fast-paced change agenda.
I have taken on board that it was a first in time execution of TUPE for the Respondent, albeit a delayed acceptance that a transfer covered by the regulations occurred.
It is also a relevant contextual backdrop that Covid 19 pandemic was still in the country during the facts of this case. I noted a considerable allocation to its planned management in the respondent staff manual, sadly this was not reciprocated in a parallel guideline for staff against a Transfer of Undertakings My jurisdiction in CA-44721-001 lies in Regulations 4 of the TUPE Regulations 131/2003 as derived from the Directive. My jurisdiction in CA-00044721-003 rests in Regulation 8 of the TUPE Regulations 131/2003 as derived from the Directive. My jurisdiction in CA 00044721-004 rests in Regulation 8 also My jurisdiction in CA-44721-006 rests in Section 5 of the Terms of Employment (Information) Act, 1994
2 Was this a transfer of undertaking comprehended by SI 131/2003 as transposed from the Directive? This was a motor dealership business, whose premises was sold by the Transferor to the Transferee in December 2020. In preparation for this case, the Respondent described an incorporation of Trinity Volkswagen on November 11, 2020. I have not had sight of the Sale Agreement. For the purposes of capturing the type of sale which occurred via the prism of the Companies Act 2014. It appears to me that it may have been constructed as a Merger by the formation of a new company. I say this as the franchises held by the Transferor did not automatically transfer over and were won by application/ tender by the Respondent as detailed by Mr. Twomey. However, the buildings, (tangible assets) and the majority of the employees were taken over by the respondent alongside the customer data base. The new business was comprised of two legal entities and were home for the VW and Skoda Dealerships awarded . The business continued in the footsteps of the transferor by selling new and second cars, organising forecourt finance and building up a knowledge of car brands, in particular the EV area. It operated in conjunction to the respondents’ other holdings detailed on the staff handbook. The business was closed for Christmas 2020 and re-opened at the date of transfer as January 4, 2021. The letter dated 14 December 2020 attributed to the Directors at the Transferor business is slightly out of step with Mr. Cs evidence that the business transaction was concluded on 16 December 2020. 1 It announced a sale of two car dealerships to the respondent. 2Date of transfer 4 January 2001 “seamless and will not affect your position “ 3 Reference to the 1977 Directive “Your employment will transfer to the Trinity Motor Group and your current employment terms and conditions with Sinnott Autos ltd will carry forward, including your length of service, effectively meaning that there will be no changes in your employment terms.” 4 The reason for the change was on health grounds and stated objective “we worked very hard to ensure that the new owners were in the motor business and were in a position to employ you all.”
In Bidvest Noonan (ROI) ltd and Martina Lynch, the Labour Court did not establish the presence of an economic entity capable of being transferred. This is distinguished by Brewhouse Ltd v Ciara o Leary at the Labour Court, relied by the Respondent. Accent Solutions v Alan O Connor TUD 221, where the Court found did not establish a breach of TUPE regulations on the nature of a health insurance group scheme present pre and post transfer. Bidvest Noonan (ROI) ltd and Eleanor Rabonsa TUD 211, where the Court accepted an overarching TUPE but did not recognize the complainants’ assertions that she had a contractual entitlement to pay adjustment in line with ERO in the contract cleaning industry. Melcorpo Commercial Properties unlimited company and Elizabeth Egan TUD 191 The court accepted an overarching TUPE, however, a delay in furnishing particulars of employment between transferor and transferee occurred. A change in reportage followed which did not amount to a breach in Regulation 4. In the conjoined cases C-171/94 and C 172/94 at the European Court of Justice under Council Directive 77/187, an interesting scenario unfolded in a transfer of a car dealership and the pathway for 2 salesmen with Anfo Motors, who refused to transfer, claiming redundancy. Albert Merckx and Patrick Neuhuys ford Motors Company Belgium SA There is a variance in the fact in the instant case in that the National Court in Brussels found there was no agreement linking Anfo Motors to Novarobel, that Anfo had dismissed more than three quarters of staff and paid redundancy, that no tangible assets had passed, and it had not been established that Anfo had transferred its customer listing. The Court of Justice in referring to Redmond Stichting v Bartol [1992] ECR 1-3189 C-29/91, Tellerup v Daddys Dance Hall [1988] ECR 739 that “… that for the Directive to apply, it is not necessary for there to be a direct contractual relationship between the transferor and transferee. Consequently, where a motor vehicle dealership concluded with one undertaking is terminated and a new dealership awarded to another pursuing the same activities, the transfer of undertakings is the result of a legal transfer for the purposes of the Directive. “ In addition, Ford agreed to take on liability for payments for breach of contract, unlawful dismissal or redundancy “which might be payable “by the transferee to Anfo workers. While the dealership was not automatically transferred in the instant case, virtually the entire staff and customer base were transferred to the transferee. In a careful and considered application of Katsikas v Konstantinidis [1992] ECR I 6577, The Court of Justice wrote a salutary note when it stated. It follows that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, it is for the Member States to determine what the fate of the contract of em0ployment, or employment relationship should be. ~The Member Staters may provide, in particular that such a case the contract /employment relationship must be regarded as terminated either by the employee or employer. They may also provide that the contract or employment relationship should be maintained with the transferor.
The Irish High Court addressed this issue in Symantec Limited v Leddy and Lyons [2009] IEHC 256 within the lifetime and scope of the current Directive, 2001/23/ EC. Edwards J held that the TUPE Regulations did not give life to a claim for redundancy against the Transferor when he stated: It does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-à-vis the transferor. It cannot do so because the fact that an employee objects to the transfer does not of itself have the effect of negativing the transfer. It is just that an employee is not obliged to continue his employment relationship with the transferee. However, the transfer still goes ahead unless a Member State expressly provides for the contrary in its implementing legislation. That this is so clear from the judgment of the ECJ in Katsikas. That court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the court said, “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ.” In my view nothing could be clearer. If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy it could have enacted legislation to that effect. It has not done so. This court is completely satisfied that by virtue of reg.4(1) it is not possible for the defendants/respondents in this case to make a redundancy claim against the plaintiff/appellant. In all the circumstances the court is satisfied to allow the appeals in both cases.
The topic of transfer of undertakings is an extremely challenging area of employment law, it is where the commercial reality of the marketplace meets the acquired rights of a worker. The case law demonstrates that it has been fraught with difficulties and CJEU interpretations on the tentacles of the Directives.
However, having considered the evidence adduced by the parties in the instant case, I am satisfied that on a careful application of the Spijker criterion that a transfer of undertakings occurred in the complainant’s employment on January 4, 2021. The transfer comprehended the transfer of an economic entity which retained its identity.
Substantive case:
CA -00044721-001 Observation of terms and conditions transferred from the Transferor. Regulation 4 I have established that a transfer of undertakings occurred in this case between Sinnott Autos Ltd and Trinity Motor Group on January 4, 2021. The Respondent has clarified that the Respondent is correctly titled as Trinity Motors Wicklow ltd T/A Trinity Volkswagen (the entity on the complaint form) with a second named company Brno Investments ltd T/ A Trinity Skoda. The Respondent did not furnish a document which detailed the precise nature of the transfer for the complainant, outside of the elaborate handbook, which Mr. Twomey reflected contained some mention of anticipatory rather than actual change. This booklet does not distinguish from those in prior employment at Trinity Motor Group and those who joined via TUPE on January 4, 2021. Neither does it capture a summary of what Terms and Conditions applied at the moment of transfer in this case. I have a pronounced difficulty with the Respondent representative’s contention that what is at issue in this case is a disappointed application for redundancy and a creative attempt to construct a self-imposed redundancy escape mechanism.
For a start, I accept the Complainants evidence that his query at the Christmas time exchange with Mr. C prior to transfer was addressed as query on behalf of the staff, not a solo query. In addition, Mr. C told me that it was Mr. O had inquired unsuccessfully regarding redundancy before he departed the business.
By the complainants’ actions, he demonstrated an attempt, at the very minimum of trying to make the transition work. I found that he took the mantle of leadership seriously and tried to lead by example. However, he faltered and became overwhelmed by the exodus of key players at the business and their replacement and augmentation in Mr. C, Ms. Y and Mr. Z alongside a brand-new group of Directors, so early into the time of transition .
I must ascertain from the evidence and submissions what rights and obligations were in existence for the parties in January 2021?
On May 1, 2018, the complainant received a document titled terms and conditions of employment. Taken with the handbook, they formed the terms and conditions of his employment. 1 Title Brand Manager and Head of Sales 2 Salary €66 560for 5.5 days (Monday to Friday 9-5.30 pm and Saturday 9.30 am to 2pm 3 overtime paid pro rata at hourly rate. 4 2 company cars 5 10 days additional leave … handbook 6 €300 per week for pension I prefer the Complainants reliance on this job title than the respondent reference to the business card title of Sales Manager.
Regulation 4 . Rights and obligations (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 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. (3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts. (4) (a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018] are protected under those Acts. (b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018], are protected.
I accept Counsel for the Complainants point that the Respondent did not demonstrate the change on the Organisational Hierarchy by means of an Organisation Chart. This may have left a floorplan of the revised management structure raised by the complainant and disputed by the respondent.
Regulation 4 permitted the complainant to carry the terms of May 1, 2018, plus the handbook into the respondent employment. The Transferor has signaled “no changes in your employment terms “ Article 2 of the Directive sets down that there cannot be any deterioration of employment conditions due to the transfer of undertakings. In Article 4 Para 2 of the Directive, it sets down that if the employment relationship is terminated because transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for the termination. Regulation 5(3). I repeat that there is no claim of statutory unfair dismissal open in this case.
My attention is now drawn to the illustration of principal duties document signed by the Complainant and the Respondent on 13 January 2021 1 The title is now Sales Manager / ID 3 Specialist (explained as EV Specialist) 2 Reportage to General Manager, replaced by Mr. A 3 responsible Sales Department and Valet Staff A to create a sales team B organize delivery of new vehicles to the dealership C internal vehicle management and reporting operation and control tasks are carried out to enhance the company service A list of duties
By any plain reading of these listings, the language in both differs significantly.
However, the document exhibited as Sales Opening Times, with an implementation date of March 22, 2021, carries a pronounced change.
I accept that the Complainant agreed to change his times and he was not compelled. He disputed the origin of the suggestion and both parties accepted that two employees Mr. and Mr. O refused to change and that was accepted. Mr. O Sullivan for the complainant has relied on the application of Regulation 9(1) and (2) in arguing that this agreement must be viewed as void as it was made without advice, but rather a desire to “fit in “and the impact of said agreement is less favourable and inconsistent with the protection in Regulation 4. He put forward the Labour Court case of Dundalk town council and David Teather PTD 113, where the former Chairman of the Labour Court, Kevin Duffy in interpreting Section 9 of the Protection of Employees (Part Time) Work ct, 2021, “…. a contractual term that goes to the status of the employee concerned is capable of being a condition of employment “ Mr. Twomey, for the Respondent disputes that it was unfavourable as the agreement was entered into on a voluntary basis and did not result in the complainant being refused leave or any specific condition of employment.
For my part, I found that the complainant operated the changed work pattern from March 22, 2021, to the end of April 2021, during that time, I accept Mr. As evidence that he was on annual leave, leaving the complainant as a standalone employee. I accept that Mr. A was not compelled to change work pattern. I accept that in Industrial Relations terms, no agreement is immutable. however, this was a high order protection, that of an EC Directive on transfer. I must interpret the jointly signed document of 19 March 2021 as a stated intention by the Respondent not to be bound by the transfer obligations. It is regrettable that the Respondent did not take some time to have a 1;1 support for the complainant posts the transfer of business. It is not unusual in a merger/acquisition / sale of business that the previous owner may retain a “walk on “consultative part. I have not identified any report of cross match of the complainants’ rights on transfer by the respondent.
I accept that neither Mr. C nor the complainant was involved in the due diligence which led to the sale. I accept that the terms on transfer should have been safeguarded post transfer and were not.
By March 22, 2021, the job title, work pattern, arrangement for days off, opportunity to avail of annual leave had been varied, albeit with the apparent agreement of the complainant. Start time had changed to 8.30 during the week and extended to 4 pm finish on Saturdays, access today in lieu of a week containing a bank holiday was curtailed, no day off during three months of peak sales. Time off in respect the 10 loose days in lie were contingent on agreement across 3 named days.
I can see that this was an employment without a visible staff representative or published collective agreements. I must conclude that the 13 January 2021 and 19 March 2021 cosigned documents by the complainant and Mr. C limit the application of Regulation and 4 must be deemed void by operation of Regulation 9(1)
The impact of the changes was to chase uniformity with the Wexford plant rather than adherence to Regulation 4. A viable commercial objective, but not supported by the provisions of Regulations 4 and 9.
I have been asked to consider whether the Complainant was subjected to substantial change in his employment to the detriment of the employee concerned so as to cause a collision between Regulation 5(3) and Regulation 4. Did the circumstances amount contravention of Regulation 4?
This the most strongly contested part of the case by the parties.
Mr. Twomey submitted that this was a back door claim for redundancy, and I should be live to that mechanism. Mr. O Sullivan submitted that the complainant neither sought redundancy through the front or the back door in this case, but instead tried to adjust to a new employer before being overtaken by stress and ill health, both new phenomena for him on April 26, 2021 I found that Mr. A was a cogent witness but not clear on the complainant’s job title. I did accept his evidence when he observed that through revised role and function the complainant had been reduced to his level. He was clear that a climate of change had accompanied the take over and it was one he did not endorse and subsequently left the business. He had a previous experience of TUPE in a hotel setting. I found the complainant very clear in some aspects of his recollection of events, but not all. For him, the culture at work had changed. Above all else, he expressed a lack of belonging that in spite of expert cross examination by Mr. Twomey, he did not waiver on. He was downcast when instructed by Mr. Z to “come through him “and not to Mr. C, yet, on paper at least both employees held the same job tile. For the complainant, this was on transfer. For Mr. Z, it was conveyed on recruitment, yet there was a large variation in both job descriptions and salaries paid. I would like to have met Mr. Z, but this did not come to pass. It is of note that the complainant did not make application for the job held by Mr. Z from March 2021. From the evidence, he was acquainted with Mr Z from the car industry, but I could not establish that the complainant was invited to compete for this position which, on paper, at least mirrored the same title. It is of note that the Sinnott’s handbook carried a section on being an equal opportunities employer on page 9. I did not find a reciprocal clause in the respondent handbook. I have reflected on the reliance by the complainant on a new mobility clause, Wexford to Wicklow rather than VW to Skoda as before. I accept Mr. Twomey’s point that this was anticipatory.
I would also have liked to have met Mr. R and indeed the Directors of the Company. I say this with a view to getting a view from the real Architects of the transfer and well as finding out more about the circumstances which prevailed to permit Mr. R to have an incentivised departure either through redundancy or severance on his reported short service. I found an inequity here that requires broader explanation in light of Symantec. Mr. C gave a very clear account of the direction mapped out by the new Owners. I understood that energy and drive in a newly acquired business. However, it is clear that the complainant was not aided in the transfer by the respondent. While, strictly speaking a duty of care to provide a safe work environment is an implied term of all contracts of employment, I could find no evaluation of the impact of the change of business on the previous “main man “at the business. I found there was a shortfall in the duty of care owed to the complainant by the respondent. In the Elizabeth Egan case relied on by the respondent. I noted that she was the sole full-time employee of a jaded business, who worked unpaid overtime and sought redundancy when overtaken by a “new improved business model “ The Labour Court took a practical interpretation when they identified the only measurable change for the complainant was her reportage to a Regional Manager, which was a universal practice for her grade. No contravention of Regulation 4 occurred. I found the facts of the instant case distinguished from Egan . The Complainant was the Senior Sales Employee at the Transferor business. He carried an authority that he used to ascertain whether contracts would be altered, or redundancies made in 2020. He carried a precise set of terms of employment which did not survive the transfer. Both of those documents of variation have been deemed void. I accept his evidence that his measurable change was visible in the dilution and fragmentation of his role through the arrival of Mr. C, Ms. Y and Mr. Z January – March 2021. He took offence at being directed to undertake tasks that he had previously delegated. He was not present at the corporate decision-making table and was directed to raise issues with Mr. Z rather than Mr. C. While I can fully accept that the Respondent did not set out to disenfranchise the complainant in any deliberate manner, I found that it was hoped that the exciting pathway set out for expansion would be a shared goal but there was no contingency when this did not occur. I took Mr. C at his word when he gave evidence of respect for the complainant. I have found that the Complainant got lost in the transfer and harked back to a more benevolent employer with a reported zero attrition rate of staff. In Symantec, Edwards J captures that whimsical look back to the Transferor in the pursuance of redundancy when in applying Katsikas, he stated:
That this is so clear from the judgment of the ECJ in Katsikas. That court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the court said, “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ.”
The Complainants eye were on stability and serving customers, while the Respondent had their eye focused on seeking an expansion in service and a return on their investment, a hallmark of Article 16 of the Charter of Fundamental rights. The facts here are varied from Symantec, as that was a seamless transition with no variation in terms. I have found a considerable variation in terms and conditions of employment in the complainant case. He was clear that his over time was unpaid. This was not disputed. His hours were unfavourably altered and his historical agreement on time in lieu and annual leave disturbed. I appreciate that he appears to have waivered the TUPE protections early on in the transfer, but I have found those changes to be void.
This was all set against a backdrop of a steady exodus of familiar faces.
I have found that the last straw for the complainant was being informed by Mr. Z that nothing would change in Sales until October. For me, that confirmed that the complainant had been vacated from the decision-making table he once sat at.
I have considered the details surrounding the April 21 meeting followed by the complainant’s absence from work, albeit after arranging the sales ribbons on the cars. I read the grievance and considered his stated objective of resolution. The Sinnott’s grievance procedure followed by the Respondent grievance procedure arguably provided both parties with scope to resolve this grievance. I found both parties to have departed from best practice here. When the Respondent eventually accepted that the complainant was fit to progress the grievance and invited him to Occupational Health, he refrained from attending. He told me that this was because he had lost trust. I can appreciate that the complainant was struggling at that point, but I would have liked to have seen a more focused alliance with the grievance procedure.
However, there was provision for Occupational Health review in the respondent booklet and the parties may have benefitted from an independent evaluation and likely recommendations for the way forward. I found unhelpful omissions from both parties here.
I also found that the speed in accepting the complainant’s resignation without the dignity of an interpersonal discussion to be a missed opportunity as it may well have provided options for both parties at that point in time, given that the complainant found new work within a short time frame.
Taking all into account, I have identified a contravention of Regulation 4 through a series of measurable changes which culminated in a substantial change amounting to a clear detriment in the complainant’s contracted role and conditions of employment. He also developed an episodic workplace stress as demonstrated in the medical report. The Complainants position was not visibly remotely the same as the role he held at the moment of transfer. The Regulation requires a safeguarding that did not occur. The agreements made subsequent to the transfer have been found to be void. I have to conclude that causation of this lies firmly with the Respondent and was exacerbated by the lack of preparatory work pretransfer as well as a dearth in staff representation, which may, if present managed some brinkmanship.
I find the complaint to be well founded.
CA-00044721-003 Consultation by the Transferee Regulation 8 I have been asked to decide on whether the Transferee consulted in relation to the transfer.? Article 7 of the Directive regulates the extent of the information obligation and be given by the Transferee in good time before employees are directly affected by the transfer. Regulation 8 SI 131/2021 provides a reference to 30 days in respect of the Transferee. . Information and consultation (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of— (a) the date or proposed date of the transfer. (b) the reasons for the transfer. (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and (d) any measures envisaged in relation to the employees. [(1A) The transferor and transferee concerned shall include, with the information being provided under paragraph (1), information as respects— (a) the number of agency workers temporarily engaged in the undertaking concerned, (b) those parts of the undertaking in which those agency workers are, for the time being, working, and (c) the type of work that those agency workers are engaged to do.] (2) The transferor shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. (3) The transferee shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. (4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement. (5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation. (6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following: (a) the date or proposed date of the transfer. (b) the reasons for the transfer. (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee. and (d) any measures envisaged in relation to the employees. (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.
In J Donoghue Beverages ltd and Elizabeth Collins TUD 183, The Labour Court fixed the Transferee as the correct entity in complaints under Regulation 8.
I have considered both parties presentations and evidence in this claim. the Complainant is clear that there were no staff representatives at this employment and the sole notification of change originated from the Transferor with a brief meet and greet informally with the respondent prior to Christmas, 2020. The Respondent took a more prosaic view and pointed to the late incorporation of the respondent company, which traded for the first time on January 4, 2021 In addition, as no legal implications or summary of any measures affecting the complainant were envisaged, the consultation may have been moot.
I have considered both perspectives and find that the complainant would have benefitted from a Transferee led consultation within the 30-day period set down. I found that the meet and greet was wholly insufficient in that regard. I would ask the parties to reflect on the provisions of Regulation 8(7) which does not provide a pass from the provisions of Regulation 8.
I find the claim is well founded.
CA-00044721-004 Transferee advice. Regulation 8 I find this is a duplicate claim to CA-00000044721-003 and is not well founded.
CA-00044721-006 Terms of Employment The Complainant has argued that he was denied the protection of Section 5 of the Act in term of the provisions of notification of change in his terms of employment. Notification of changes. 5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) the day on which the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.
I have found that the changes in terms and conditions are void in my earlier decision. I find the complaint to be not well founded |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Regulation 10 of the European Communities Protection of Employees on Transfer of Undertakings Regulations 2003, SI/131/2003 CA -00044721-001 I have found a contravention in Regulation 4 of an serious nature. As this is a contravention of a Directive, I must consider that any remedy I might award is effective and has a deterring effect, Sabine von Colson and Elizabeth Kamann v LandNordrhein Westfalen C- 14/83
I have considered options and remedies open to me and find that I wish to make an award of compensation as a just and equitable remedy in this case. I think it is important that closure and learning follows for both parties. I would also direct the Respondent to incorporate a policy on Transfer of Undertakings in the staff handbook to provide guidance in any future transfer planned . I order the Respondent to pay to the complainant €35,840, 28 weeks of his salary in respect of the contravention of Regulation 4 of TUPE regulations. CA-00044721-003 I have found the claim well founded as a contravention of Regulation 8 and I award maximum compensation of €5,120 to be paid by the Respondent to the Complainant. CA-00044721-004 The claim is duplicated and not well founded. CA-00044721-006
Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the complaint in accordance with Section 5 of that Act. In light of my earlier findings that changes made are void. I find the claim is not well founded. The claim is not well founded.
|
Dated: 27th November 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Transfer of Undertakings /Notification of change |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033852
Parties:
| Complainant | Respondent |
Parties | Tony Breslin | Trinity Motors Wicklow Limited |
Representatives | Stephen O Sullivan, BL instructed by Freehill Solicitors | Adrian Twomey, Jacob and Twomey Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
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-00044721-001 | 22/06/2021 |
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-00044721-003 | 22/06/2021 |
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-00044721-004 | 22/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044721-006 | 22/06/2021 |
Date of Adjudication Hearing: 8 July 2022 and 21 March and 27 April 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment ( Information)Act , 1994 and Regulation 10 of the European Communities (Protection of Employees ion Transfer of Undertakings) Regulations SI 13/2003, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
On 22 June 2021, the complainant, through his Solicitor submitted a number of claims to the WRC. The claims were directed towards two employers in the context of the transfer of undertakings, which occurred on 4 January 2021. At that time, the claims were stratified by the WRC into. ADJ 33852 and ADJ 33853 The remaining claims to be decided ADJ 33852 against the Transferee stand as: CA -00044721-001 Transferee CA-00044721-003 Transferee CA-00044721-004 Transferee CA-00044721-006 Transferee The conjoined cases of ADJ 33852 and 33853 came for Remote Hearing on 8 July 2022 in accordance with:
This was followed by an in person hearing in Waterford Courthouse on 21 March 2023. The case concluded on the Remote platform on 27 April 2023. At hearing on 8 July 2022, Counsel for the Complainant sought a realignment of CA-00044721-002, lodged as a claim for unfair dismissal against the Transferor in June 2021 to the Transferee. Both parties made oral submissions on the day. In light of the clear complexities in the case, I requested that the parties take some time to explore whether they could reach a mutually agreeable solution. This was unsuccessful. I was mindful that an earlier claim of unfair dismissal against the Transferee had been withdrawn pre first day of hearing. I canvassed submissions from each party on this matter and considered the points made by both. On January 12, 2023, I wrote to the parties and declined the request: I have no desire to make things more difficult for the parties, but I have been asked to decide whether the Respondent name in ADJ 33853 (CA-00044721-002) can be amended to reflect the Respondent name in ADJ 33852
In reaching a decision on this point of clarification, I have decided that the ADJ 33852 and ADJ 33853 should remain in their present legal construction and the cases should proceed in the presence of both respondents within the shortest possible time frame. ADJ 33852 Will comprise CA-00044721-001, CA-00044721-003, CA-00044731-004and CA-0004721-006
ADJ 33853
Will comprise CA-00044721-002
My reasoning for this approach follows the seminal case of Travel Lodge Management ltd v Sylwia Wach, EDA 1511, 2015
On January 26, 2023, the Complainants Solicitor, having read my response, withdrew CA-00044721-002 and ADJ 33853 was then closed.
The instant case proceeded on two days of oral hearing. Mr. As evidence was presented on a laptop on day 1 to facilitate his live work commitments. I am grateful to the Complainants Solicitor and to the Staff at PRU who facilitated this. I am also grateful to the Respondent Solicitor in that regard. Both parties made extensive legal and oral submissions in the case. I wish to acknowledge the expert approach adopted by both parties for their respective clients in this case. At the conclusion of the hearing, I requested further detail on the job advertisement for Head of Sales, the post held by Mr. Z from March 2021.I received this advertisement dated 8 February as Head of Sales Wicklow. The Complainant furnished their response on 8 May 2023. I have had regard for both communicated positions. |
Summary of Complainant’s Case:
The Complainant was employed as a Brand Manager and Head of Sales in a Motor Business, Sinnott’s Auto ltd, at the time of a transfer of undertakings on 4 January 2021. He had worked continuously with the Transferor Sinnott Autos from June 1996. Terms and conditions were furnished in May 2018
On 14 December 2020, the complainant received notification of an impending transfer of undertakings to occur on January 4, 2021. I have taken an extract from that letter for illustrative purposes. We are delighted to announce the sale of our VW and Skoda Dealerships to the Murphy Family of Trinity Motors Group, who like Sinnott Autos, are a 2nd generation family business. The transition, effective from 4 January 2021, will be seamless and will not affect your position. Under the Transfer of Undertakings Directive of 1977, (which safeguards employees’ rights) your employment will transfer to the Trinity Motor Group and your current employment terms and conditions with Sinnott Autos ltd will carry forward, including your length of service, effectively meaning that there will be no changes in your employment terms. The Respondent presented a document which incorporated revised opening times on 19 March 2021, which the complainant signed post the transfer of business. Counsel for the Complaint submitted that Regulation 4, TUPE Regulations prohibits a contracting out of the complainants’ rights. The working hours were changed.
CA -00044721-001 My new employer did not observe the terms and conditions transferred from my previous employer. CA-00044721-003 The new employer did not consult in relation to the transfer. CA-00044721-004 The new employer did not advise me in relation to the transfer. CA-00044721-006 I was not notified of a change to my terms of employment. Summary of written submissions:
Mr. O Sullivan, Counsel for the Complainant expressed his dissatisfaction that the Respondent was placing the Complainant on proof of TUPE in the circumstances of this case. He read through his prepared submission on the second day of hearing. He outlined that the complainant had been exposed to a radical change in his working role and function following the takeover of the business in January 2021. Before the Transfer, the Complainant was introduced by the Transferor on the Business card as Sales Manager After this, the complainant acknowledged his approval to change his working hours but not in the context of section 5 of the Terms of Employment (Information) Act, 1994. He experienced a decline in his seniority on the appointment of Ms. Y, a business manager and Mr. Z as Head of Sales. A comparative analysis was undertaken between both staff handbooks of transferor and transferee. Mr. O Sullivan contended that the complainant was exposed to a probation clause in the Transferee handbook and approached to go Commission only, which he refused. He was also advised of a new mobility clause. These were seismic changes. The Complainant was surrounded by a pronounced exodus from the previous sales team. The Complaint discussed the difficulties that he was experiencing with Mr. C on 21 April 2021, but this did not resolve matters. There was no plan to expand the work force until October 2021. The Complainant commenced sick leave on 29 April 2021 and submitted a grievance. He was keen to engage in a resolution. He was referred to Occupational Health Service. On 29 April 2021, the respondent sent a letter saying the issues would be dealt with when the complainant was fully recovered and returned to work. On 10 May,2021, the complainant tendered a medical cert to say that while he was unfit for work, he could participate in the grievance. The Respondent continued to link a resolution with a return to work. On 18 May 2021 the complainant was requested to attend an Occupational Health Service to ascertain his fitness to engage in a grievance during sick leave. There was no response to the grievance and the Complainant resigned his employment on 24 May 2021. The respondent requested the complainant reconsider his resignation and continued to link occupational health to processing the grievance. The complainant returned the company cars and said his goodbyes. Counsel submitted that the complainant was not aided by documentation prepared by the respondent, from where he could understand TUPE. This was not resolved by the very brief letter issued by the Respondent on 14 December ,2020. Counsel clarified that this case was not built on the ETO argument …. He submitted that the Respondent had not complied with the GDPR request which was submitted by the complainant. He argued that Brand Manager / Head of Sales should have been indistinguishable. Counsel argued the application of Regulation 9(1) and 9(2) Counsel sought compensation as a remedy.
CA -00044721-001 My new employer did not observe the terms and conditions transferred from my previous employer. The Complainant contends a breach of Regulation 4.1 and 4,.2 of SI 13/2003 ETO reasons are not a defence to a change in terms and conditions. CA-00044721-003 The new employer did not consult in relation to the transfer. The Transferee did not comply with Regulation 8 of the TUPE regulations. CA-00044721-004 The new employer did not advise me in relation to the transfer. CA-00044721-006 The complainant submitted that contrary to Section 5 of the 1994 Act, he was not notified of a change to my terms of employment within a month of the change. Annual leave, hours of work, correct legal entity, changed role.
Evidence of Mr. A Sales Representative, 18 years, Sinnott’s, (Affirmation) (Remote presentation) Mr. A had been with the Transferor for 18 years. He learned of the impending transfer by letter from Sinnott’s and verbally in January 2021. He carried a high level of VW and Electric Car knowledge and operated as a Brand Ambassador amongst a sales team of four. Mr. A recalled that he had not agreed to the proposed newer work schedule. He had not been denied annual leave in July and went on leave during April 2021. He outlined some detail on the 10-day discretionary days off mid-week, during the quieter months. He referred to the upward alignment in business post covid related lockdown. He described that car finance had previously been managed by the complainant and Mr. R before Ms. Y arrived. He submitted that secondhand car pricing was taken over by the respondent Director and Mr. D, previously the complainant had overseen the pricing.
Mr. A was graphic in his description of a changed work atmosphere during the weeks after the move. He said things became “harder and harder “as 6 staff left key areas. They were called on to help other areas and he described the atmosphere at horrible. The Sales Manager at Skoda left. Stress level began to rise, and he began to have concerns at the way the business was being run. He said “It wasn’t a pleasant place “ He was medically advised to take time out in response to his anxiety and blood pressure. He decided to leave and consider a different career. He distinguished himself from the complainant saying that the complainant had worked at a higher level to him as Head of Sales.
During cross examination, he responded to Mr. Twomey’s questions on what he understood was the makeup of the two dealerships with VW and Skoda franchise. He confirmed they were housed in two separate buildings but did not know about the two separate companies. He was assigned to VW, but helped at Skoda, if busy. He confirmed that the Sales Manager at Skoda and the Sales rep at VW, Mr. R had good working relationships. He confirmed that both employees left before he did. He was unsure if he had had discussions with them, but told Mr. Twomey that they probably felt the same as he did in being unhappy at work and seeing that “everything had changed “ He denied that he had discussed redundancy with either the complainant or Head of Sales at Skoda, but he had been informed by Mr. O He had been unsuccessful. He said that he could not recall if the complainant had discussed it with him as it was a fading memory but as far as he could recall, it was a conversation with Mr. O in the Sales yard. He did not recall amounts discussed. He clarified that Mr. R was the sole redundancy he knew about.
Mr. Twomey worked on the job title conveyed on the complainant. Mr. A said that VW changed titles and the complainant was confirmed as sales manager “at the finish “. He gave examples of variants in role titles applied by VW. While with Sinnott’s, the complainant was his boss, with only a member of Sinnott family more senior to him. He reaffirmed that the complainant was known as the Sales Manager
He submitted that the conduct of his work in sales, stock, variations would normally be run through Mr. Breslin, the complainant as Head of Sales, but this changed after the transfer.
Pre VW, Mr. A was a Product Specialist, another title was electric vehicle specialist and another a brand ambassador. He was then more specific when he described his role during his tenure as sales executive and the complainant as sales manager. He was unsure of the staff allocation at VW but contended a 5-7 reduction front of house over a 7/8-month period. New hires also left. He agreed that there were 35 staff across Sinnott’s. He clarified that the sales role far outweighed sales but was also comprised of product knowledge, IT and technology of product. Mr. A confirmed that he had been requested to change his hours on 3 occasions by Mr. C but refused. He was unaware that sales staff across the company had suggested the change. He recalled a short meeting before the take over which occurred in the canteen. He confirmed that the staff did not have an identified staff representative.
Mr. A addressed the 21 April meeting, where manpower shortages, car loans, risk of errors, customer concerns and challenges in time management were discussed. Mr. C kept comparing the site to Wexford which “did ok “on the same numbers of staff. Mr. A reaffirmed that the key topic was workload and lads in Wexford worked to 10pm. He had no recall of any discussion on annual leave. He had taken one weeks leave himself. He accepted that there was no complaint of annual leave. He had no recall if job title had been discussed. He had not seen the minutes of April 21 as presented in the respondent papers. He understood the action plan was compilation of a business case for a qualified salesperson to replace one of the previous owners and Mr. R. He confirmed that the augmented numbers of supports added by Trinity Motors had not eased the workload. He became ill towards the end of the Summer and recalled the complainant being on sick leave during March/ April He recalled that Mr. D oversaw everything in Sales, and all reported to him. His own Sales Team had shrunk from 4 to 2. He clarified that he had a previous operational experience of TUPE in a Hotel setting in 1989.
Evidence of the complainant The complainant gave direct evidence of working for the Transferor as Head of Sales and Brand Manager for VW from 1996. He gave evidence of working 9.30 am to 2 pm every Saturday, which was busy. He said that he always received his 10 days as time in lieu. He referred to the Transferors handbook and the Sinnott’s contract. Mr Breslin confirmed that he had been notified of impending change at the business on 14 December 2020, but that there was no follow up. He stated that no reference had been made to enduring retention of terms and conditions going forward. The 10 days in lieu were not committed to writing. By March 19, 2021, Mr C proposed an upward alignment in working hours to ensure all dealerships operated the same. The Complainant had not secured legal advice but accepted the less favourable change, as he wanted to fit in. The complainant denied that the change was more favourable for him. The Complainant described the period that followed his new employment as his believing that he was no longer head of sales as the role was usurped by one of the owners, who undertook pricing structures and Mr C. He had a brief meeting with Mr C in February 2021 where new targets were set at 300 per annum. Previously, the complainant had reported directly to the owners of the business, two brothers. Now, however, he was referred to an unnamed new head of sales who then commenced after St Patricks Day, 2021, as Mr Z. He contended that the chain of command had also altered and with the appointment of a business manager Ms Y, he observed a diminution in his own role. The Complainant recalled that a colleague, Mr R, was not recalled back to work with everyone else in January 2021. By 12 March 2021, Mr R told the complainant he wasn’t coming back and had been terminated. Work became different and busier and when asked if anyone reported to him, the complainant replied that he was expected to run things past one of the owners, Mr G and Mr C as they started taking the calls. His finish times became irregular and unpaid at 6/7 and 8 pm while it was 6pm with the Transferee. He said he became stressed. The Complainant had been salaried during his tenure with the Transferor and vetoed a request by Mr C for him to go “commission only “
He did not have sight of a revised organisational chart post transfer.
The Complainant recalled that he had previously taken his annual leave during the second week of July for 24 years, whereas the Respondent handbook restricted this, and this was a problem for him. He had been Head of Sales, VW, now Mr Z was over Skoda and VW Sales for the Respondent. Another Sales Manager for Skoda, Mr O, who reported to the General Manager had resigned. A member of the Sinnott family (VW) had also left before the takeover. The General Manager at Skoda had left before the takeover. Mr R, a member of the VW sales team told him that he had been terminated. He had adopted a helping role previously if the Skoda section asked him to help. now, Mr Z was over it all, 150 yards apart. The Complainant was unaware of any due diligence completed pre-sale. The new handbook contained a mobility clause, not previously a consideration for him. The Complainant told the hearing that he felt rudderless along with Mr A in the changeover. He had initially felt welcomed with “smiles and handshakes “but the Respondent family were now dominant and Mr C, as General Manager was not available to him. He contended that he had been reduced to the same level as Mr A at the business. He confirmed that the meeting which occurred on 21 April 2021 was not followed up by minutes. He sought legal assistance and confirmed that his health was good then but stress intervened. Ms Y was appointed in a Finance role. She held the same qualification in credit and replaced him in the role, where he had “been the only one to advise on finance “. His role on pricing second hand cars was usurped by Mr Z and he was referring customers to him. The Complainant submitted that with finance and pricing gone, he maintained that his role was reduced to that of a “meet and greet “ This situation prompted the 29 April 2021 letter. He felt it necessary to take himself out of the environment as he was anxious and not sleeping. He was deemed fit to engage in management of this grievance and was requested to attend a grievance meeting, but he did not trust the respondent. The Complainant confirmed that he had not been met with a formal plan to address the grievance. He confirmed that he was angry with the respondent. He denied that he had sought redundancy and said that it was never mentioned. He stated that he could not function at work, and he did not like the way the respondent worked. Mr Breslin confirmed that he had not been met with a respondent issue of terms and conditions and an assurance of their continuance. He recalled that flippant remarks on changes to Saturday working were made by the Respondent Directors during the first week of transition in employment. In referring to pages 5/14 of the staff handbook of the Transferor, the restriction centred on two weeks of July for annual leave, not the entire month. He confirmed the presence of a probationary clause in the respondent booklet. The complainant submitted that it was his decision to resign. He had sustained a loss of income to €41, 604.27. 6-7 others also left out of the 35 who made the transition. This stood in contrast to a zero rate of attrition with the Transferor. During cross examination, The Complainant addressed Mr Twomey’s question on job title by stating that he was Head of Sales / Brand Manager as set out on his contract of employment. He added that Mr A had been mistaken on his description. He responded that the business card exhibited by the Respondent had been given out “years ago “to customers by the Transferor as Tony Breslin, PIB APA (Consumer Credit) Sales Manager He went on to submit that his official title in 2018 was Head of Sales, this meant Head of Whole Sales. His reference point was the dealer, and this role was assigned to Mr Z, to whom he became an adjunct figure. He then had to refer sales to Mr C and the Company Director, Mr G. He explained that the titles of Head of Sales and Sales Brand Manager were indistinguishable at Sinnott’s, the Transferor. He explained the origin of his access to two cars for domestic purposes as arising from a pay reduction in 2008/9. BIK applied and Sinnott’s managed everything else. There were no other benefits in the form of tax. He accepted that the 10 days as time in lieu was not discussed with the respondent, as he had not stayed on long enough. He had neither applied for nor had been refused annual leave in July. Mr Twomey raised the parallel presence of two staff handbooks and the complainant confirmed that he had read both books and noted the variations. In relation to the timing of the change, he confirmed that one of the Sinnott brothers had signalled change as far back as October 2020. VW, present at Sinnott’s since 1987, had communicated that a new dealership was taking over the business. He learned that there was an anticipated cull on dealer networks. Skoda was not mentioned. By late November, Sinnott’s confirmed the sale of the business to him.
He confirmed that he was informed of the change on 14 December 2020 at a meeting convened by Sinnott’s. He said he met Mr C in the Sinnott’s office and asked if people were being let go or placed on different contracts? Mr C told him that the Respondent was taking on all staff as per contract. This piece prompted a pressure point at hearing. The complainant clarified that he had asked for clarification on redundancy or a difference in contract for all, not himself alone. He accepted that he had attained security of employment. He accepted that his working hours were not changed against his agreement. He acknowledged that he had not obtained legal advice prior to the change as he didn’t think he needed it. The complainant said he was aware that Mr O and Mr A had objected to the change. He recalled the year 2020 corresponded with covid and the covid pandemic payment was paid for 8 weeks. The Respondent did not play him off and he worked January -April 2021 as despite lockdown, there were still a cadre of callers, albeit of a reduced amount supplemented by online and phones contacts to the business. Mr R was laid off at on the first Friday back. That reduced the sales team to 2, he and Mr A. He recalled the 21 April meeting and he identified that another salesperson was needed as sales were rising post covid. In response Mr C was keen to extol the efficiencies of the Wexford team. The complainant countered that Wicklow sales exceeded Wexford. He understood the plan was to make a business case for another salesperson. The Complainant clarified that Mr A had requested the meeting to back him as by then, the sales role and finance role had been taken from him. He said that he wasn’t sleeping, was agitated and sought legal advice. He recalled his first visit to his doctor was on 26 April 2021 which was followed up with the medical report of July 22, exhibited. Mr Twomey focussed his questions on the short duration of time to furnishing of the grievance on …. The complainant struggled with his recollections over the 2-year time lapse. Mr Twomey put to the complainant that the Respondent in the form of Mr C reached out and offered assistance to him. The complainant conveyed that by then he was really struggling with his diminished role. Mr Z was based in VW site most days. The Complainant replied that he came in to take over from him. He said that he did not agree to return to work, and it was no consolation to him to be offered time by the respondent. He said that the stress eased as he stayed out of the job. Mr Twomey used a footballer analogy to place Wexford and Wicklow as “one fit “the complainant re-affirmed that Mr Z had taken over and replaced him. He denied seeking to work towards extracting a payment via redundancy. In redirect, the complainant confirmed that he did not have a contract as sales manager. There was no organisational chart which incorporated Mr Z. The Complainant described his role as reduced to deliveries rather than his habitual delegation. The Complainant confirmed that he approached Mr Z during the Wednesday or Thursday after the 21 April engagement on workload. Mr Z told him that nobody would be taken on until at least October and he should “come to him “to discuss things. He said that he protected his job by leaving. He had not been paid for the additional hours worked. In seeking a clarification on why he chose not to attend Occupational health? he replied that he had lost trust. In addition, the complainant did not share the respondent enthusiasm for cosmetic office changes post transfer. He was non plussed when asked if these changes helped? In trying to probe on the relevance of Mr R in the case? the complainant clarified that he learned that he had been reported as having been made redundant without associated reason, but when he met Mr R himself in a supermarket, he told him that he had been “let go “and compromised a case with the respondent. Neither party put Mr R or indeed Mr Z forward as witnesses in this case. |
Summary of Respondent’s Case:
The Respondent operates a Franchisee Motor Business across a number of locations and was incorporated on 11 November 2020. All four claims are disputed.
The Respondent described commencement of trading on 4 January 2021, following the award of the VW franchise for the county of Wicklow and the movement of 35 staff previously employed by Sinnott Autos ltd, the previous holder of the VW franchise. The Respondent purchased the Sinnott Autos limited premises. The Respondent did not introduce this commercial transaction as a business transaction under the Transfer of Undertakings Legislation (TUPE) This was met by considerable criticism by Counsel for the complainant. On the second day of hearing, Mr. Twomey for the Respondent categorised the business transaction as that of a business transaction covered by the TUPE Regulations.
By way of background and in summary of the Respondent submissions, Mr. Twomey confirmed that Mr. Breslin, the complainant commenced work at Sinnott Autos on 18 June 1996, followed by a short statement of terms and conditions of employment on May 1, 2018. A staff handbook was also provided. The Complainant worked full time with a basic salary of €66,560 for 5.5 days per week, inclusive of Saturday working. The complainant resigned, without notice, 4 months into the new employment, in the aftermath of one month of sick leave and without agreement to reconsider his resignation. He had not reverted to Mr. C in the aftermath of the April 21 meeting. Mr. Twomey outlined that the complainant received a copy of the Trinity Motor Group Employee handbook on commencement with the Respondent employment. There was no diminution of his terms and conditions of employment. The Business was in transition and proposed revised opening hours, earlier start on weekdays and 10 am to 4pm on Saturdays in March 2021. A time in lieu system was also proposed to reflect the changed operating times. Both were agreed with the Complainant and manifested as a reduction in working hours from those with the Transferor. The only change arose in relation to the working hours, and these were agreed subsequent to the transfer. There was no obligation on him to agree. It was the Respondent case that there were no measures envisaged for employees and the respondent was compliant with Regulation 8(1) in relation to the issuing of the letter of transfer.
Mr. Twomey confirmed that the Respondent was unaware of any difficulties being experienced by the complainant until Mr. A sought-out Mr. C, at 9.15 am on 21 April 2021 to meet with both he and the complainant. The meeting occurred at 10.30 am. Both the Complainant and Mr. A highlighted that “they were too busy in the sales department “They were informed that additional staff would be hired, if necessary. Discussions on workload management ensued and the Sales Team were to revert to Mr. C. The Complainant proceeded on medically sanctioned sick leave from 26 April to 14 May 2021. He did not return to work. On Friday 29 April 2021, the Complainant submitted a written grievance with hallmarks of legal construct. The letter set out that the complainant was operating in a post TUPE environment. He contended that: 1 His role as head of sales had been completely diminished. 2 Requested to do menial tasks on out of hours communiques. 3 reductions in staff from 4 to 2 on the sales team 4 working hours changed. 5 changes in annual leave over month of July, access to two weeks and cover requirements 6 A Business Manager had taken over financial sales, Ms. Y. 7 New Head of Sales for VW to whom the complainant was answerable, Mr. Z. 8 Authority to price and evaluate trade ins subsumed by Mr. Z
The complainant stated that “the actions have had a considerable negative impact on my mental health. I am currently certified as unfit to work due to stress “he flagged a risk to his health and safety.
Mr. Twomey placed the Complainant on proof of a transfer of undertakings within the 2003 Regulations. Mr. Twomey submitted the respondent position that the complainant desired an exit through redundancy and felt entitled to one and was unhappy when he was not made redundant. He did enquire from Mr. C on whether a redundancy situation arose? and was informed no. He then exited through “the back door “
Mr. Twomey submitted that there was no substance to the 4 live complaints. Minor differentials existed in the handbook at a de minimus level. The matter of the GDPR was not relevant as it was not related to a claim.
CA -00044721-001 The Respondent disputed the claim that the respondent had not observed terms and conditions transferred from the Transferor. The Respondent denied that a diminution of terms of conditions occurred post transfer. The Complainant placed insufficient weighting on his own absence from the workplace set against the respondent commitment to address the April 29 grievance on the complainants return to work. The Respondent was denied a clear opportunity to resolve matters. CA-00044721-003 The Respondent denied a contravention of Regulation 8.1, 8.3 and 8.4 Regulation 8.1 The Respondent was incorporated in November 2020 and did not have a cohort of employees to whom it could have been required to give information in advance of the transfer. The Complainant has acknowledged that he was informed of the transfer by letter dated 14 December 2020. It was not reasonably practicable for the respondent to issue. There were no measures envisaged on transfer which obligated consultation. In relation to 8.1, Mr. Twomey submitted that the complainant was relying on Regulation 5 (3) on whether a substantial change in working conditions to the detriment of the employee concerned. This was disputed by the respondent witness, Mr. C. He added that the respondent was relying on Regulation 5(2) ETO grounds and the complainant was unreasonable without affording the respondent a reasonable opportunity to address his stated concerns. In relying on ADJ 3816, A Restaurant Manager v A Restaurant, incorporating Finnegan J in Berber v Dunne’s Stores [2009] ELR 61, Mr. Twomey pointed to the Adjudicators decision on finding that a Constructive Dismissal had not occurred. “… his own conduct also falls below the standard required of an employee in respect of exhausting available remedies for any complaint he had, which on the basis of the evidence, would have been very difficult to stand up. However, he did not avail of the opportunity to do so. “ Mr. Twomey sought that the complaints under TUPE Regulations should be dismissed.
CA-00044721-004 The Respondent denied a contravention of Regulation 8.1, 8.3 and 8.4. Duplicate claim The Respondent was incorporated in November 2020 and did not have a cohort of employees to whom it could have been required to give information in advance of the transfer. The Complainant has acknowledged that he was informed of the transfer by letter dated 14 December 2020. The respondent did not have employees prior to 4 January 2021. There were no measures envisaged on transfer which obligated consultation.
CA-00044721-006 Term of Employment The Respondent has disputed this claim and contended that there were no changes in the complainants’ terms and conditions of employment save on
1 page 69 of the submission, document of principal duties signed on 13 January 2021 2 page 70 of the submission, document of agreement to change working hours, signed by both parties on 19 March 2021. I understand and accept the changes to the opening times of the business and agree to adhere to the changes. Mr. Twomey focused on the mention of a projection on redundancy in the complainant’s submission and pointed to the complainants’ own aspirations towards an entitlement in that regard in that regard. However, a redundancy situation did not occur.
Evidence of Mr C Dealer Principal and Chief Operations Officer (oath) Mr C has 30 years’ experience in the Motor Business, 5 years with the Respondent. He gave a useful background of 2 separate dealerships where two separate companies were incorporated on November 20, 2020. He stated that the Respondent won the right of franchise for Skoda and VW and bought the Transferor premises. 1 Trinity Motors Wicklow 2 Brno Investments ltd T/ A Trinity Skoda ltd He outlined the history of the business, which commenced in Wexford in 1995 and comprised 7 brands over 2 counties. Once the right to trade was won and the transferor building sale concluded, the next course of action was to TUPE the staff. Protracted negotiations followed alongside a company director but “everything was closed “in December 2020. Agreement was reached with Sinnott’s on 16 December 2020 and signed details of the change were furnished to the employees on 17 December. On 18 December 2020, together with the company Director and Sinnott’s, Mr C met with all the employees across Skoda / VW at Sinnott’s. He recalled the complainant being there. At that time, the Skoda section was closed and a skeleton staff in VW. He briefly explained TUPE and that employment and pay was being protected. He assured the staff that the respondent would be there in January. This was the first venture of TUPE for the company. Mr C explained that he had replaced one of the Sinnott brothers. He outlined the changes that underlined the transition from Sinnott’s to Trinity. He understood that one of the family members may have been made redundant, but the respondent was not involved as it was not a detail of the transfer. On transfer, there were 29 full time staff and 3 part time. This subsequently rose to 50 staff and stands at 100 staff across the dealerships. Mr C confirmed that the 14 December letter to staff meant no changes to terms and conditions in 2021. The Complainant did not express any concerns to him. He stated that “I understood his role as Sales Manager or Brand Manager “ There were three dedicated staff at Wicklow VW 1 the complainant as Head of Sales 2 Mr A, who had referred to his boss as Sales Manager 3 Mr R The volume of cars was lower at Skoda, but leads were equal as Sales Managers. Ms Y, appointed in Finance/ Insurance had since left. The Respondent planned efficiencies in the new business, this manifested in painting offices, deep cleans, lighting, improved workshops, refurbishment of the forecourt. This was a major investment as sales were being “tidied up “. The objective was to secure the employment of staff. The technical staff were provided with new uniforms. Mr C first realised that the complainant had a problem on 29 April 2021. He confirmed that he had a short meeting with Mr A and the complainant on April 21, 2021.He said he prepared a personal note of 7 bullet points for the purpose of taking legal advice. This meeting was led by Mr A and there was no agenda. The subject matter focussed on workload being “beyond what they could cope with “He said he was happy to listen, asked them both to reflect as he did not believe another sales rep was needed. He denied asking the complainant to compile a business plan but rather asked him to consider making a business case, which was a simple desk top exercise. This was because, the process had changed to an emphasis on sales and taking away finance, reduction in extended time with customer, and no photography.
He recalled that the grievances that followed had not been heard before. He was shocked as the complainant had signed his agreement to transfer on 13 January 2021, 9 days after the takeover, where there no issues raised on the job title. The revised working hours were put forward as a suggestion by the Wexford dealership and was placed for consideration of the Wicklow staff. Two remained on the existing hours and Mr …. And Mr A. The Complainant had signed his agreement. Mr C denied that her complainant was stripped of his duties. He said that he was well regarded at the company, and this was visible when his office was enhanced. Mr C recalled Mr R as being on temporary layoff prior to take over. He worked one week and recommenced on temporary layoff. He was then made redundant by a director on 2 years’ service on the LIFO principle. The Head of Sales at Skoda resigned in April 2021 following his unsuccessful exploration of the potential for redundancy. Mr C submitted that he believed that the complainant planned his exit. He saw that sashes were prepared for steering wheels on Saturday, rather than the night before release. This for him, at least demonstrated a planned exit. He expressed a disappointment that issues which he viewed as solvable were not teased out between them. He requested occupational health second opinion to validate a safe approach. He was broken hearted by the complainant’s resignation and tried to stall it. He denied that TUPE varied the complainants’ terms and conditions. The job title was not diminished the respondent was following a best practice model. The introduction of Mr Z as Head of Sales on 22 March 2021, in the second named business, addressed a support for Mr C and the complainant did not raise any issue with Mr Zs job title from his start in March 2021. The Complainant was acquainted with him. The position was advertised in February 2021 and carried a purse of €100k, €65 plus bonus. Mr C confirmed that the Business Manager was added with input of Directors. He denied a lack of support for the complainant. He denied refusing him annual leave. He said that he did not know anything about a planned sales hire in October 2021. He disagreed that the complainant was “rudderless “ He confirmed that out of 9 leavers post transfer, that 2 staff returned and 3 others re-applied. This is indicative of challenges in the Motor Industry.
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Findings and Conclusions:
I have been requested to consider the facts as raised, evidence adduced and written submissions as advanced by both parties enroute to making a decision on all four live claims at the end of this long running case. Three claims stand under the TUPE Regulations, SI 131/2003, which emerged from Council Directive No 2001 / 23 / EC, 12 March 2021(Acquired Rights Directive), relating to the protection of employee rights on transfer of undertakings, businesses or part thereof. It is important, particularly in the context of the letter dated 14 December 2020, attributed to the Transferor in this case, to acknowledge that the Directive adds to and consolidates the 1977 Directive,77/187/EEC and the 1998 Directive, 98/50. One claim stands under the Terms of Employment (Information) Act, 1994.
I have engaged in these deliberations against a complicated employment relationship. I have made my decision after much consideration. I apologise for the delay in completion.
Claims under TUPE Regulations SI 131/2003 Prior to recording my findings in these claims, I would like to set out.
1 My jurisdiction in the case 2 Did a transfer of undertakings occur in this case by operation of law?
The words safeguarding of employee rights in the event of transfer of undertakings comes straight from Directive 2001/23/EC. The purpose of the Directive at individual level is to provide for the protection of employees in the event of a change of employer and a knock-on safeguarding of rights at set out in Recital 3 At Collective level, it aims to maintain the employment conditions based on collective agreements.
A transfer of undertakings is defined by the Directive at Article 1 as: - Transfer of an economic entity which retains its identity, meaning an organized grouping of resources which has the objective of pursuing and economic identity whether or not that activity is central or ancillary. Suzen C-13/95, Rygaard C-48/94 The seminal case of Spijkers C-24/85 sets down the key criterion of assessment for a transfer of undertaking. Type of business Transfer of tangible assets Value of intangible assets at transfer Take over of majority of staff (Transferor) Transfer of customers Degree of similarity between activities carried out before and after the transfer. Whether a period of suspension occurred?
Mr. Spijker was an assistant manager at a slaughterhouse, who claimed that his employment should have transferred alongside others on sale of the business. The past employer had ceased trading and there was no goodwill. The ECJ held that a mere transfer of assets did not constitute a transfer and set down the criterion to be considered in the round in seeking to establish a transfer within the meaning of the Directive.? The Labour Court in this jurisdiction in Bidvest Noonan (ROI) and Martina Lynch considered what amounts to “an economic entity “in the context of a transfer of undertakings scenario. On that occasion, the Court did not establish the occurrence of a transfer governed by the TUPE Regulations.
It is worthy of consideration in this case that a considerable period of time was expended by the Respondent on placing the complainant on notice that an activity governed by the TUPE Regulations actually occurred. This caused some disappointment within the complainant delegation.
I found this symptomatic of a dearth of specifically focused conjoined discussions on the topic of transfer both pre and post the transfer. The reliance on the 1977 Directive in the letter dated 14 December also suggests a vacuum in understanding of the Transferors understanding of their obligations. However, this case is not directed at the Transferor.
I wish to note that this opaqueness is not unusual in the world of employment law in this country as very adeptly captured in the EAT case of Moran v Bloxham’s Stockbrokers UD 377/2002, in advance of the transposition of the Directive into Irish Law:
“On the evidence of all the parties there was no suggestion at the time that this was meant to be a Transfer of Undertakings situation and in fact this concept appears to have been made known to the parties on the institution of these proceedings “
What commenced as an intended safeguarding measure at European level has proved a contentious issue in this case. While there is no claim for statutory unfair dismissal live before the Transferor or Transferee, having both been withdrawn, the complainant has approached this case pleading a total lack of perceived safeguarding in his employment to the point where he says he felt compelled left as a consequence. Counsel for the Complainant has reached for the application of Regulation 5 here and this is completely opposed by the Respondent.
The Respondent completely refutes this and instead chronicles a dynamic commercial reality of takeover, improvements, expansion and commercial viability in the motor industry. This was strongly reflected in Mr. C’s evidence on the expansion in the workforce post take over to a cumulative 100. The Respondent argued that no messages were envisaged for the complainant on takeover, In their description, the Respondent adhered to the spirit of Article 16 of the Charter of Fundamental Rights of EU, 2012 Article 16: Freedom to conduct a business. The freedom to conduct a business in accordance with Union law and national laws and practices is recognised. Alemo-Herron v Parkwood Leisure Ltd (Case C-426/11) Which considered whether the circumstances of whether the terms of a collective agreement on pay entered into past the date of transfer and not participated in by Parkwood could be interpreted as protected by transfer of undertakings? It was held by ECJ that it was not.
Abels v Administrative Board of the Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie “… the Directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the transferee under the same conditions as those agreed with the transferor. They are intended to ensure that the employment relationship continues unchanged with the transferee”. (C-135/83) [1985] E.C.R. 469 and Foreningen af Arbejdsledere i Danmark v A/S Danmols Inventar (C-105/84) [1985] E.C.R. 2639.
For me and to use a motor industry term, the parties presented their case in completely different lanes on the consequence of the January 4, 2021, date of transfer. Yes, there was agreement on date of transfer and eventually that a transfer of undertakings had occurred but the seismic gap between the parties seemed to me to manifest itself on how the parties viewed the immediacy of the post transfer setting. For the Respondent it was a new dawn, an opportunity to grow the business and a first endeavour in acquisition of business, which has since yielded a success. For the complainant, it signaled a fragmentation in his standing in the work setting. By his own admission, he was centrally poised in the patriarchy of Sinnott’s but described himself as “rudderless “in the new business. He did not regain his standing before he resigned. I was particularly struck by the complainants non plussed response to my request for clarification on whether he had seen benefit in the respondent investment in the business, inclusive of having his office redecorated? I found the complainants response, both verbal and nonverbal went to the root of this case. I accept that he was struggling to belong.
A transfer of undertaking protection has at its very heart protection, stability and safeguarding, alongside opportunity to develop and thrive. In a family law context, it strikes me as very similar to an adoption as opposed to fostering. In a transfer of Undertakings, Edwards J has clarified in the High Court case Symantec Limited v Leddy and Lyons [2009] IEHC 256 that a refusal to transfer employments is not covered by any particular next step pathway. In that case, it was held that no change in terms of employment occurred and claims for redundancy were unsuccessful.
The Complainant has depicted his recollection of trying to fit in amongst a fast-paced change agenda.
I have taken on board that it was a first in time execution of TUPE for the Respondent, albeit a delayed acceptance that a transfer covered by the regulations occurred.
It is also a relevant contextual backdrop that Covid 19 pandemic was still in the country during the facts of this case. I noted a considerable allocation to its planned management in the respondent staff manual, sadly this was not reciprocated in a parallel guideline for staff against a Transfer of Undertakings My jurisdiction in CA-44721-001 lies in Regulations 4 of the TUPE Regulations 131/2003 as derived from the Directive. My jurisdiction in CA-00044721-003 rests in Regulation 8 of the TUPE Regulations 131/2003 as derived from the Directive. My jurisdiction in CA 00044721-004 rests in Regulation 8 also My jurisdiction in CA-44721-006 rests in Section 5 of the Terms of Employment (Information) Act, 1994
2 Was this a transfer of undertaking comprehended by SI 131/2003 as transposed from the Directive? This was a motor dealership business, whose premises was sold by the Transferor to the Transferee in December 2020. In preparation for this case, the Respondent described an incorporation of Trinity Volkswagen on November 11, 2020. I have not had sight of the Sale Agreement. For the purposes of capturing the type of sale which occurred via the prism of the Companies Act 2014. It appears to me that it may have been constructed as a Merger by the formation of a new company. I say this as the franchises held by the Transferor did not automatically transfer over and were won by application/ tender by the Respondent as detailed by Mr. Twomey. However, the buildings, (tangible assets) and the majority of the employees were taken over by the respondent alongside the customer data base. The new business was comprised of two legal entities and were home for the VW and Skoda Dealerships awarded . The business continued in the footsteps of the transferor by selling new and second cars, organising forecourt finance and building up a knowledge of car brands, in particular the EV area. It operated in conjunction to the respondents’ other holdings detailed on the staff handbook. The business was closed for Christmas 2020 and re-opened at the date of transfer as January 4, 2021. The letter dated 14 December 2020 attributed to the Directors at the Transferor business is slightly out of step with Mr. Cs evidence that the business transaction was concluded on 16 December 2020. 1 It announced a sale of two car dealerships to the respondent. 2Date of transfer 4 January 2001 “seamless and will not affect your position “ 3 Reference to the 1977 Directive “Your employment will transfer to the Trinity Motor Group and your current employment terms and conditions with Sinnott Autos ltd will carry forward, including your length of service, effectively meaning that there will be no changes in your employment terms.” 4 The reason for the change was on health grounds and stated objective “we worked very hard to ensure that the new owners were in the motor business and were in a position to employ you all.”
In Bidvest Noonan (ROI) ltd and Martina Lynch, the Labour Court did not establish the presence of an economic entity capable of being transferred. This is distinguished by Brewhouse Ltd v Ciara o Leary at the Labour Court, relied by the Respondent. Accent Solutions v Alan O Connor TUD 221, where the Court found did not establish a breach of TUPE regulations on the nature of a health insurance group scheme present pre and post transfer. Bidvest Noonan (ROI) ltd and Eleanor Rabonsa TUD 211, where the Court accepted an overarching TUPE but did not recognize the complainants’ assertions that she had a contractual entitlement to pay adjustment in line with ERO in the contract cleaning industry. Melcorpo Commercial Properties unlimited company and Elizabeth Egan TUD 191 The court accepted an overarching TUPE, however, a delay in furnishing particulars of employment between transferor and transferee occurred. A change in reportage followed which did not amount to a breach in Regulation 4. In the conjoined cases C-171/94 and C 172/94 at the European Court of Justice under Council Directive 77/187, an interesting scenario unfolded in a transfer of a car dealership and the pathway for 2 salesmen with Anfo Motors, who refused to transfer, claiming redundancy. Albert Merckx and Patrick Neuhuys ford Motors Company Belgium SA There is a variance in the fact in the instant case in that the National Court in Brussels found there was no agreement linking Anfo Motors to Novarobel, that Anfo had dismissed more than three quarters of staff and paid redundancy, that no tangible assets had passed, and it had not been established that Anfo had transferred its customer listing. The Court of Justice in referring to Redmond Stichting v Bartol [1992] ECR 1-3189 C-29/91, Tellerup v Daddys Dance Hall [1988] ECR 739 that “… that for the Directive to apply, it is not necessary for there to be a direct contractual relationship between the transferor and transferee. Consequently, where a motor vehicle dealership concluded with one undertaking is terminated and a new dealership awarded to another pursuing the same activities, the transfer of undertakings is the result of a legal transfer for the purposes of the Directive. “ In addition, Ford agreed to take on liability for payments for breach of contract, unlawful dismissal or redundancy “which might be payable “by the transferee to Anfo workers. While the dealership was not automatically transferred in the instant case, virtually the entire staff and customer base were transferred to the transferee. In a careful and considered application of Katsikas v Konstantinidis [1992] ECR I 6577, The Court of Justice wrote a salutary note when it stated. It follows that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, it is for the Member States to determine what the fate of the contract of em0ployment, or employment relationship should be. ~The Member Staters may provide, in particular that such a case the contract /employment relationship must be regarded as terminated either by the employee or employer. They may also provide that the contract or employment relationship should be maintained with the transferor.
The Irish High Court addressed this issue in Symantec Limited v Leddy and Lyons [2009] IEHC 256 within the lifetime and scope of the current Directive, 2001/23/ EC. Edwards J held that the TUPE Regulations did not give life to a claim for redundancy against the Transferor when he stated: It does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-à-vis the transferor. It cannot do so because the fact that an employee objects to the transfer does not of itself have the effect of negativing the transfer. It is just that an employee is not obliged to continue his employment relationship with the transferee. However, the transfer still goes ahead unless a Member State expressly provides for the contrary in its implementing legislation. That this is so clear from the judgment of the ECJ in Katsikas. That court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the court said, “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ.” In my view nothing could be clearer. If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy it could have enacted legislation to that effect. It has not done so. This court is completely satisfied that by virtue of reg.4(1) it is not possible for the defendants/respondents in this case to make a redundancy claim against the plaintiff/appellant. In all the circumstances the court is satisfied to allow the appeals in both cases.
The topic of transfer of undertakings is an extremely challenging area of employment law, it is where the commercial reality of the marketplace meets the acquired rights of a worker. The case law demonstrates that it has been fraught with difficulties and CJEU interpretations on the tentacles of the Directives.
However, having considered the evidence adduced by the parties in the instant case, I am satisfied that on a careful application of the Spijker criterion that a transfer of undertakings occurred in the complainant’s employment on January 4, 2021. The transfer comprehended the transfer of an economic entity which retained its identity.
Substantive case:
CA -00044721-001 Observation of terms and conditions transferred from the Transferor. Regulation 4 I have established that a transfer of undertakings occurred in this case between Sinnott Autos Ltd and Trinity Motor Group on January 4, 2021. The Respondent has clarified that the Respondent is correctly titled as Trinity Motors Wicklow ltd T/A Trinity Volkswagen (the entity on the complaint form) with a second named company Brno Investments ltd T/ A Trinity Skoda. The Respondent did not furnish a document which detailed the precise nature of the transfer for the complainant, outside of the elaborate handbook, which Mr. Twomey reflected contained some mention of anticipatory rather than actual change. This booklet does not distinguish from those in prior employment at Trinity Motor Group and those who joined via TUPE on January 4, 2021. Neither does it capture a summary of what Terms and Conditions applied at the moment of transfer in this case. I have a pronounced difficulty with the Respondent representative’s contention that what is at issue in this case is a disappointed application for redundancy and a creative attempt to construct a self-imposed redundancy escape mechanism.
For a start, I accept the Complainants evidence that his query at the Christmas time exchange with Mr. C prior to transfer was addressed as query on behalf of the staff, not a solo query. In addition, Mr. C told me that it was Mr. O had inquired unsuccessfully regarding redundancy before he departed the business.
By the complainants’ actions, he demonstrated an attempt, at the very minimum of trying to make the transition work. I found that he took the mantle of leadership seriously and tried to lead by example. However, he faltered and became overwhelmed by the exodus of key players at the business and their replacement and augmentation in Mr. C, Ms. Y and Mr. Z alongside a brand-new group of Directors, so early into the time of transition .
I must ascertain from the evidence and submissions what rights and obligations were in existence for the parties in January 2021?
On May 1, 2018, the complainant received a document titled terms and conditions of employment. Taken with the handbook, they formed the terms and conditions of his employment. 1 Title Brand Manager and Head of Sales 2 Salary €66 560for 5.5 days (Monday to Friday 9-5.30 pm and Saturday 9.30 am to 2pm 3 overtime paid pro rata at hourly rate. 4 2 company cars 5 10 days additional leave … handbook 6 €300 per week for pension I prefer the Complainants reliance on this job title than the respondent reference to the business card title of Sales Manager.
Regulation 4 . Rights and obligations (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 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. (3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts. (4) (a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018] are protected under those Acts. (b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018], are protected.
I accept Counsel for the Complainants point that the Respondent did not demonstrate the change on the Organisational Hierarchy by means of an Organisation Chart. This may have left a floorplan of the revised management structure raised by the complainant and disputed by the respondent.
Regulation 4 permitted the complainant to carry the terms of May 1, 2018, plus the handbook into the respondent employment. The Transferor has signaled “no changes in your employment terms “ Article 2 of the Directive sets down that there cannot be any deterioration of employment conditions due to the transfer of undertakings. In Article 4 Para 2 of the Directive, it sets down that if the employment relationship is terminated because transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for the termination. Regulation 5(3). I repeat that there is no claim of statutory unfair dismissal open in this case.
My attention is now drawn to the illustration of principal duties document signed by the Complainant and the Respondent on 13 January 2021 1 The title is now Sales Manager / ID 3 Specialist (explained as EV Specialist) 2 Reportage to General Manager, replaced by Mr. A 3 responsible Sales Department and Valet Staff A to create a sales team B organize delivery of new vehicles to the dealership C internal vehicle management and reporting operation and control tasks are carried out to enhance the company service A list of duties
By any plain reading of these listings, the language in both differs significantly.
However, the document exhibited as Sales Opening Times, with an implementation date of March 22, 2021, carries a pronounced change.
I accept that the Complainant agreed to change his times and he was not compelled. He disputed the origin of the suggestion and both parties accepted that two employees Mr. and Mr. O refused to change and that was accepted. Mr. O Sullivan for the complainant has relied on the application of Regulation 9(1) and (2) in arguing that this agreement must be viewed as void as it was made without advice, but rather a desire to “fit in “and the impact of said agreement is less favourable and inconsistent with the protection in Regulation 4. He put forward the Labour Court case of Dundalk town council and David Teather PTD 113, where the former Chairman of the Labour Court, Kevin Duffy in interpreting Section 9 of the Protection of Employees (Part Time) Work ct, 2021, “…. a contractual term that goes to the status of the employee concerned is capable of being a condition of employment “ Mr. Twomey, for the Respondent disputes that it was unfavourable as the agreement was entered into on a voluntary basis and did not result in the complainant being refused leave or any specific condition of employment.
For my part, I found that the complainant operated the changed work pattern from March 22, 2021, to the end of April 2021, during that time, I accept Mr. As evidence that he was on annual leave, leaving the complainant as a standalone employee. I accept that Mr. A was not compelled to change work pattern. I accept that in Industrial Relations terms, no agreement is immutable. however, this was a high order protection, that of an EC Directive on transfer. I must interpret the jointly signed document of 19 March 2021 as a stated intention by the Respondent not to be bound by the transfer obligations. It is regrettable that the Respondent did not take some time to have a 1;1 support for the complainant posts the transfer of business. It is not unusual in a merger/acquisition / sale of business that the previous owner may retain a “walk on “consultative part. I have not identified any report of cross match of the complainants’ rights on transfer by the respondent.
I accept that neither Mr. C nor the complainant was involved in the due diligence which led to the sale. I accept that the terms on transfer should have been safeguarded post transfer and were not.
By March 22, 2021, the job title, work pattern, arrangement for days off, opportunity to avail of annual leave had been varied, albeit with the apparent agreement of the complainant. Start time had changed to 8.30 during the week and extended to 4 pm finish on Saturdays, access today in lieu of a week containing a bank holiday was curtailed, no day off during three months of peak sales. Time off in respect the 10 loose days in lie were contingent on agreement across 3 named days.
I can see that this was an employment without a visible staff representative or published collective agreements. I must conclude that the 13 January 2021 and 19 March 2021 cosigned documents by the complainant and Mr. C limit the application of Regulation and 4 must be deemed void by operation of Regulation 9(1)
The impact of the changes was to chase uniformity with the Wexford plant rather than adherence to Regulation 4. A viable commercial objective, but not supported by the provisions of Regulations 4 and 9.
I have been asked to consider whether the Complainant was subjected to substantial change in his employment to the detriment of the employee concerned so as to cause a collision between Regulation 5(3) and Regulation 4. Did the circumstances amount contravention of Regulation 4?
This the most strongly contested part of the case by the parties.
Mr. Twomey submitted that this was a back door claim for redundancy, and I should be live to that mechanism. Mr. O Sullivan submitted that the complainant neither sought redundancy through the front or the back door in this case, but instead tried to adjust to a new employer before being overtaken by stress and ill health, both new phenomena for him on April 26, 2021 I found that Mr. A was a cogent witness but not clear on the complainant’s job title. I did accept his evidence when he observed that through revised role and function the complainant had been reduced to his level. He was clear that a climate of change had accompanied the take over and it was one he did not endorse and subsequently left the business. He had a previous experience of TUPE in a hotel setting. I found the complainant very clear in some aspects of his recollection of events, but not all. For him, the culture at work had changed. Above all else, he expressed a lack of belonging that in spite of expert cross examination by Mr. Twomey, he did not waiver on. He was downcast when instructed by Mr. Z to “come through him “and not to Mr. C, yet, on paper at least both employees held the same job tile. For the complainant, this was on transfer. For Mr. Z, it was conveyed on recruitment, yet there was a large variation in both job descriptions and salaries paid. I would like to have met Mr. Z, but this did not come to pass. It is of note that the complainant did not make application for the job held by Mr. Z from March 2021. From the evidence, he was acquainted with Mr Z from the car industry, but I could not establish that the complainant was invited to compete for this position which, on paper, at least mirrored the same title. It is of note that the Sinnott’s handbook carried a section on being an equal opportunities employer on page 9. I did not find a reciprocal clause in the respondent handbook. I have reflected on the reliance by the complainant on a new mobility clause, Wexford to Wicklow rather than VW to Skoda as before. I accept Mr. Twomey’s point that this was anticipatory.
I would also have liked to have met Mr. R and indeed the Directors of the Company. I say this with a view to getting a view from the real Architects of the transfer and well as finding out more about the circumstances which prevailed to permit Mr. R to have an incentivised departure either through redundancy or severance on his reported short service. I found an inequity here that requires broader explanation in light of Symantec. Mr. C gave a very clear account of the direction mapped out by the new Owners. I understood that energy and drive in a newly acquired business. However, it is clear that the complainant was not aided in the transfer by the respondent. While, strictly speaking a duty of care to provide a safe work environment is an implied term of all contracts of employment, I could find no evaluation of the impact of the change of business on the previous “main man “at the business. I found there was a shortfall in the duty of care owed to the complainant by the respondent. In the Elizabeth Egan case relied on by the respondent. I noted that she was the sole full-time employee of a jaded business, who worked unpaid overtime and sought redundancy when overtaken by a “new improved business model “ The Labour Court took a practical interpretation when they identified the only measurable change for the complainant was her reportage to a Regional Manager, which was a universal practice for her grade. No contravention of Regulation 4 occurred. I found the facts of the instant case distinguished from Egan . The Complainant was the Senior Sales Employee at the Transferor business. He carried an authority that he used to ascertain whether contracts would be altered, or redundancies made in 2020. He carried a precise set of terms of employment which did not survive the transfer. Both of those documents of variation have been deemed void. I accept his evidence that his measurable change was visible in the dilution and fragmentation of his role through the arrival of Mr. C, Ms. Y and Mr. Z January – March 2021. He took offence at being directed to undertake tasks that he had previously delegated. He was not present at the corporate decision-making table and was directed to raise issues with Mr. Z rather than Mr. C. While I can fully accept that the Respondent did not set out to disenfranchise the complainant in any deliberate manner, I found that it was hoped that the exciting pathway set out for expansion would be a shared goal but there was no contingency when this did not occur. I took Mr. C at his word when he gave evidence of respect for the complainant. I have found that the Complainant got lost in the transfer and harked back to a more benevolent employer with a reported zero attrition rate of staff. In Symantec, Edwards J captures that whimsical look back to the Transferor in the pursuance of redundancy when in applying Katsikas, he stated:
That this is so clear from the judgment of the ECJ in Katsikas. That court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the court said, “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ.”
The Complainants eye were on stability and serving customers, while the Respondent had their eye focused on seeking an expansion in service and a return on their investment, a hallmark of Article 16 of the Charter of Fundamental rights. The facts here are varied from Symantec, as that was a seamless transition with no variation in terms. I have found a considerable variation in terms and conditions of employment in the complainant case. He was clear that his over time was unpaid. This was not disputed. His hours were unfavourably altered and his historical agreement on time in lieu and annual leave disturbed. I appreciate that he appears to have waivered the TUPE protections early on in the transfer, but I have found those changes to be void.
This was all set against a backdrop of a steady exodus of familiar faces.
I have found that the last straw for the complainant was being informed by Mr. Z that nothing would change in Sales until October. For me, that confirmed that the complainant had been vacated from the decision-making table he once sat at.
I have considered the details surrounding the April 21 meeting followed by the complainant’s absence from work, albeit after arranging the sales ribbons on the cars. I read the grievance and considered his stated objective of resolution. The Sinnott’s grievance procedure followed by the Respondent grievance procedure arguably provided both parties with scope to resolve this grievance. I found both parties to have departed from best practice here. When the Respondent eventually accepted that the complainant was fit to progress the grievance and invited him to Occupational Health, he refrained from attending. He told me that this was because he had lost trust. I can appreciate that the complainant was struggling at that point, but I would have liked to have seen a more focused alliance with the grievance procedure.
However, there was provision for Occupational Health review in the respondent booklet and the parties may have benefitted from an independent evaluation and likely recommendations for the way forward. I found unhelpful omissions from both parties here.
I also found that the speed in accepting the complainant’s resignation without the dignity of an interpersonal discussion to be a missed opportunity as it may well have provided options for both parties at that point in time, given that the complainant found new work within a short time frame.
Taking all into account, I have identified a contravention of Regulation 4 through a series of measurable changes which culminated in a substantial change amounting to a clear detriment in the complainant’s contracted role and conditions of employment. He also developed an episodic workplace stress as demonstrated in the medical report. The Complainants position was not visibly remotely the same as the role he held at the moment of transfer. The Regulation requires a safeguarding that did not occur. The agreements made subsequent to the transfer have been found to be void. I have to conclude that causation of this lies firmly with the Respondent and was exacerbated by the lack of preparatory work pretransfer as well as a dearth in staff representation, which may, if present managed some brinkmanship.
I find the complaint to be well founded.
CA-00044721-003 Consultation by the Transferee Regulation 8 I have been asked to decide on whether the Transferee consulted in relation to the transfer.? Article 7 of the Directive regulates the extent of the information obligation and be given by the Transferee in good time before employees are directly affected by the transfer. Regulation 8 SI 131/2021 provides a reference to 30 days in respect of the Transferee. . Information and consultation (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of— (a) the date or proposed date of the transfer. (b) the reasons for the transfer. (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and (d) any measures envisaged in relation to the employees. [(1A) The transferor and transferee concerned shall include, with the information being provided under paragraph (1), information as respects— (a) the number of agency workers temporarily engaged in the undertaking concerned, (b) those parts of the undertaking in which those agency workers are, for the time being, working, and (c) the type of work that those agency workers are engaged to do.] (2) The transferor shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. (3) The transferee shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. (4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement. (5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation. (6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following: (a) the date or proposed date of the transfer. (b) the reasons for the transfer. (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee. and (d) any measures envisaged in relation to the employees. (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.
In J Donoghue Beverages ltd and Elizabeth Collins TUD 183, The Labour Court fixed the Transferee as the correct entity in complaints under Regulation 8.
I have considered both parties presentations and evidence in this claim. the Complainant is clear that there were no staff representatives at this employment and the sole notification of change originated from the Transferor with a brief meet and greet informally with the respondent prior to Christmas, 2020. The Respondent took a more prosaic view and pointed to the late incorporation of the respondent company, which traded for the first time on January 4, 2021 In addition, as no legal implications or summary of any measures affecting the complainant were envisaged, the consultation may have been moot.
I have considered both perspectives and find that the complainant would have benefitted from a Transferee led consultation within the 30-day period set down. I found that the meet and greet was wholly insufficient in that regard. I would ask the parties to reflect on the provisions of Regulation 8(7) which does not provide a pass from the provisions of Regulation 8.
I find the claim is well founded.
CA-00044721-004 Transferee advice. Regulation 8 I find this is a duplicate claim to CA-00000044721-003 and is not well founded.
CA-00044721-006 Terms of Employment The Complainant has argued that he was denied the protection of Section 5 of the Act in term of the provisions of notification of change in his terms of employment. Notification of changes. 5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) the day on which the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.
I have found that the changes in terms and conditions are void in my earlier decision. I find the complaint to be not well founded |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Regulation 10 of the European Communities Protection of Employees on Transfer of Undertakings Regulations 2003, SI/131/2003 CA -00044721-001 I have found a contravention in Regulation 4 of an serious nature. As this is a contravention of a Directive, I must consider that any remedy I might award is effective and has a deterring effect, Sabine von Colson and Elizabeth Kamann v LandNordrhein Westfalen C- 14/83
I have considered options and remedies open to me and find that I wish to make an award of compensation as a just and equitable remedy in this case. I think it is important that closure and learning follows for both parties. I would also direct the Respondent to incorporate a policy on Transfer of Undertakings in the staff handbook to provide guidance in any future transfer planned . I order the Respondent to pay to the complainant €35,840, 28 weeks of his salary in respect of the contravention of Regulation 4 of TUPE regulations. CA-00044721-003 I have found the claim well founded as a contravention of Regulation 8 and I award maximum compensation of €5,120 to be paid by the Respondent to the Complainant. CA-00044721-004 The claim is duplicated and not well founded. CA-00044721-006
Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the complaint in accordance with Section 5 of that Act. In light of my earlier findings that changes made are void. I find the claim is not well founded. The claim is not well founded.
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Dated: 27th November 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Transfer of Undertakings /Notification of change |