Complainant

Respondent

Parties

Christina  McGovern

Toscain Trading as Tagneys Bar

Representatives

Constantine McMahon BL instructed by Michael O'Donnell of Michael O'Donnell Solicitor

Diane Reidy, O’ Sullivan Reidy Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051564-001

05/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051564-002

05/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051564-003

05/07/2022

The Complainant commenced her employment with the Respondent on 1 September 2007. The Complainant’s employment with the Respondent ceased on 14 November 2021.

The Complainant referred her claim to the Director General of the WRC on 5 July 2022 pursuant to the Terms of Employment (information) Act, 1994 alleging that she did not receive a statement in writing of her terms of employment.

The Complainant further alleged that she did not receive her public holidays and annual leave entitlements that she had accrued over the years. She also alleged that she was refused redundancy.

Mr McMahon BL, on behalf of the Complainant submits as follows.

BACKGROUND

On or about 1 September 2007 the Complainant was employed by the Respondent as bar staff in the Respondent's public house. At the time she worked about 30 hours a week each week. Initially the Complainant earned €8 an hour and later €9 an hour. As of recent years, the Complainant earns €10.50 per hour.

Upon entering employment with the Respondent, the Complainant was at no time furnished with her terms and conditions of employment and has never received since any contract of employment or terms and conditions.

The Complainant while working for the Respondent never received payslips, the Respondent paid her via cheque each week. It is submitted that the Respondent paid the PRSI and PAYE on the Complainant's earning and deducted it from the gross wages of the Complainant and submitted the net amount to the Complainant via cheque.

The Complainant was subject to short notice as to what hours she would be working each week. She was notified of her hours via text from the manager for the Respondent. These hours were subject to change at extremely short notice. The Complainant submits that there was never any set rota posted.

The Complainant was in position of responsibility in her employment, she locked up the premises, often she was instructed to bring the daily take from the registers home with her and then bring the take to the Respondent's managers later.

The Complainant never received paid holiday leave under statute. The Complainant also worked certain public holidays and never received any increase in her wages for working on public holidays. The Complainant submits that the only time she ever received holiday pay was for two weeks in 2019. Between the years 2007 and the time when the Respondent company relinquished control of the on licensed premises in November 2021, the Complainant only ever received two weeks of holiday pay in 2019. Every other year the Complainant was not given holiday pay that she was entitled to under statute.

On or about the 19 November 2021 the Respondent leased the on licence and premises attached to same to a third party who now operates the premises where the Complainant currently works.

On many occasions during the period 2007 to 2021, the Complainant asked the Respondent about holiday pay but was never given an answer. The Complainant sought legal advice on the issue in and around April 2022 and her solicitor Michael O’Donnell wrote to the original solicitors for the Respondent for clarification as to whether there was continuity with the new lessors of the premises in respect of the employee's entitlements or whether the Respondent would agree to pay for the outstanding holiday pay. A reply was received from Denis A Linehan, solicitor for the Respondent, on the 29 April 2022 stating that he was awaiting instructions from the Respondent. A further email was sent from Mr O'Donnell's office to the offices of Mr Linehan on the 14 July 2022 following up on the previous correspondence.

PRELIMINARY ISSUE - Time limits and additional claim

In the circumstances where this complaint was received by the Workplace Relations Commission outside the six month period allowed from the date of contravention under Section 41 of the Workplace Relations Act 2015 the Complainant applies under section 41(8) of the Workplace Relations Act, 2015 to have time extended by a further six months from the date of expiration on the basis that the failure to refer within the six months allowed was due to reasonable cause.

The Complainant must show that there is a reason to extend time by a further 6 months pursuant to s.41(8) of the 2015 Act and that the delay is "due to a reasonable cause". The Complainant’s representative relies on Cementation Skanska v Carroll DWT0338 and Donal O 'Donnell and Catherine O 'Donnell v Dun Laoghaire Corporation (1991] ILRM 30.

At the adjudication hearing, Mr McMahon BL confirmed that the Complainant was not pursuing her claim in relation to redundancy.

Mr McMahon asserted that the holiday pay crystallised at the end of the annual leave year and therefore, the time limit should be calculated from 31 March 2022.

Mr McMahon BL further submitted that at the time of the transfer of undertakings, the Complainant spoke to Mr Tangney about her entitlements but to no satisfaction. The Complainant sought legal advice from her solicitor in January 2022. The Complainant’s solicitor, in turn, contacted the solicitor for the Respondent in January 2022. It was hoped that an agreement could be reached.

Further it was submitted that due to an oversight the drop-down box for pay was not selected and therefore the issue of the Complainant's outstanding holiday pay is not before the Adjudication Officer. The Complainant asks the Adjudication Officer’s discretion to amend the claim notice to hear the matter of outstanding holiday pay. There would be no prejudice caused to the Respondent as the claim notice reflects the reliefs sought in the specific complaint details section and as such the Respondent is on notice that the Complainant is seeking holiday pay which has not been paid.

At the adjudication hearing, Mr McMahon BL asserted that the WRC complaint form is complicated. He noted that it is not a statutory form and a wrong box was ticked.

LEGAL SUBMISSIONS

Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that an employer is obliged to provide a statement in writing within five days of the commencement of the employee’s employment with the employer, the following particulars:

a)                the full names of the employer and the employee;

b)                the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office within the meaning of the Companies Act 2014;

c)                in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires',

d)                the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

e)                the number of hours which the employer reasonably expects the employee to work (i) per normal working day, and (ii) per normal working week.

An employer is then obliged within two months of an employee's employment to give or cause to be given to the employee a statement in writing containing the following particulars:

a)               the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places;

b)               the title of the job or nature of the work for which the employee is employed;

c)                the date of commencement of the employee's contract of employment;

d)               that the employee may under s.23 of the National Minimum Wage Act 2000 request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section;

e)               the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval;

f)                 any terms or conditions relating to hours of work (including overtime)

g)               any terms or conditions relating to paid leave (other than paid sick leave);

h)               any terms or conditions relating to

-          incapacity for work due to sickness or injury and paid sick leave; and

-          pensions and pension schemes;

i)                 the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice;

j)                 a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Complainant herein did not receive her terms and conditions of employment within the 2 months of starting her role in September 2008 pursuant to the Terms of Employment (Information) Act, 1994.

In A Doctor v A Public Service Provider [2020] ELR 159, the WRC found that a failure to comply with the terms of the 1994 act was a subsisting and continuing breach for the period of the employment until the failure is rectified. If the employment ends and no terms of employment had been delivered to the employee, the employee can make a complaint within 6 months of the end of the employment. Further, section 3 of the 1994 act is subject to the requirements of section 41(6) of the Workplace Relations Act 2015.

Section 19 of the Organisation of Working Time Act, 1997 states that an employee shall be entitled to be paid annual leave equal to 4 working weeks in a leave year in which she works at least 1,365 hours per working year or one-third of a working week for each month in the leave year in which she works at least 117 hours. Further, the section states that if more than one of the paragraphs referred to in the section is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee is entitled shall be equal to whichever of those periods is greater.

In Grosvenor Cleaning Services Ltd v Services Industrial Professional Technical Union DWT071, it was determined that the transferor of a business could not avoid liability to provide employees with their statutory entitlement to holidays. It was argued that the transferee was liable and not the transferor. In that case, there was considerable leave due to the complainants. The transfer took place on 31 March 2003, and it was noted that the leave years had expired and the respondent transferor had failed to discharge its statutory duty to provide the Complainants with the annual leave. The Court then said that the transferor was using the Transfer of Undertakings Regulations 2003 to avoid its liabilities. The Court stated that the entitlement to holidays is not merely contractual but a right derived from statute which exists independently of any contractual terms.

In Solid Building Company Ltd v Baranovs DWT0821, the Labour Court stated that the Respondent was in flagrant disregard of its obligation in domestic and Community law and in a manner which was oppressive and exploitative of the complainant. The Court stated that the quantum of compensation must go beyond the economic loss suffered by the complainant.

In Kuzinsky t/a Assorti v Anastazjew DWT0918, it was illustrated that the Labour Court may also award additional compensation in respect of breaches of the Act, such sums being deemed "both proportionate and sufficiently dissuasive to act as a deterrent against future infractions".

The decision in Connaughton & Sons Landscaping Ltd v Stolarczyk DWT 12107, shows that "a significant award of compensation over and above an entitlement under the Act is only appropriate where there has been a deliberate and conscious breach of workers' rights".

Pursuant to section 25 of the Organisation of Working Time Act, 1997 all annual leave and public holiday records should be kept and maintained by an employer at the place where the employee works and retained for a period of at least three years for inspections by the Inspectorate of the Workplace Relations Commission.

Section 27(3) of the Organisation of Working Time Act, 1997 provides that a decision of an Adjudication Officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

a)       declare that the complaint was unfounded,

b)      require the employer to comply with the relevant provision,

c)       require the employer to pay to the employee compensation of such amount (if just and equitable having regard to all the circumstances, but not exceeding 2 years in respect of the employee's employment.

At the adjudication hearing, the Complainant’s representative was unable to provide monetary value of the alleged outstanding entitlements. It was submitted that the Complainant sought a payment of 4 weeks’ annual leave for each of the 14 years she had worked for the Respondent at the weekly wage of €200. It was further asserted that the Complainant was entitled to all public holidays for 14 years.

SUMMARY

The Respondent herein has failed to pay the Complainant holiday pay with the exception of two weeks paid for the year 2019. Further, the Respondent failed to furnish to the Complainant her terms and conditions of employment which the Respondent was obliged to do under statute.

Summary of direct evidence and cross-examination of the Complainant

Ms McGovern said that she commenced her employment with the Respondent in September 2007. She described her duties.

The Complainant said that she had no contract. She said that she usually took a week off every year but was not paid for it. She confirmed that she received two weeks of paid holidays in 2019. The Complainant said that she asked for holiday pay but never got it. The Complainant said that she worked on public holidays but received no extra pay.

The Complainant said that she was paid €9 per hour by the Respondent. Since the transfer of undertakings, she is paid €10.50 per hour.

The Complainant said that she obtained legal advice in January 2022. She said that she thought that she was entitled to redundancy because her employment with the Respondent ended.

In cross-examination the Complainant said that “she supposed” she had a good relationship with the Respondent. She agreed that the Respondent trusted her, and she was able to talk to the Respondent. She denied that she never spoke about outstanding annual leave.

The Complainant confirmed that she got legal advice in January 2022, at that stage she was working for a new employer after the TUPE. It was put to the Complainant that she was well aware of her entitlements in January 2022, at the latest, but she waited until April 2022 to refer her claim. The Complainant said that she waited for correspondence from the Respondent.

It was put to the Complainant that the Respondent accepts that she never got her terms of employment but there had never been any issue with annual leave, which was paid by cheques or cash. The Complainant said that these were lies.

There was no written submission furnished by the Respondent either prior or at the adjudication hearing, and no witnesses gave evidence. Mr Tangney, the owner of the business attended the hearing but did not give evidence.

At the adjudication hearing, Ms Reidy, on behalf of the Respondent raised the following preliminary matters.

Time limits

It was submitted that the Complainant’s employment with the Respondent ended on 14 November 2021. She referred her claim on 5 July 2022 and , therefore, her claim was out of time.

Ms Reidy, solicitor asserted that the Complainant was aware of her entitlements and there was no reasonable cause shown to extend the time limits.

Additional claims

It was submitted that the claim under the Organisation of Working Time Act, 1997 regarding annual leave and public holidays was not before the Adjudication Officer. It was asserted that it was a fresh claim, and the Respondent would be prejudiced if the claim was heard. It was argued that the Complainant referred only her claim under the Terms of Employment (Information) Act. It was submitted that the Adjudication Officer is not allowed to permit an addition to what was in the initial complaint form.

Regarding the substantive matter, the Respondent did not dispute that the Complainant was not furnished with a contract or terms of employment. In relation to annual leave and public holidays, the Respondent argued that all entitlements were paid to the Complainant by cheque or by cash.

The Respondent was asked by the Adjudication Officer to furnish by 6 September 2023 any records of annual leave and/or public holiday it has in its possession, if any. No such records were received.

Preliminary matter – additional claims and jurisdiction of the WRC

The Complainant’s claim was referred to the Director General of the WRC on 5 July 2022 pursuant to section 7 of the Terms of Employment (Information) Act, 1994. In the Complaint Specific Details or Statement section, it stated:

‘our client started work in 2007 on a part time basis and received circa 200 per week. Mr Tagney leased out the premises and the new owners. Our client has holidays and bank holidays which have accrued to her over the years that she has not been paid for and she has also been refused redundancy.’

In considering the introduction of the new claims, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where it was held at paragraph 6.2;-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this judgment at paragraph 6.3 that this can only be done so long as "the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated at paragraph 6.5:- 

‘It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.’

I also note the dicta of MacMenamin J. in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In the present case, the new claims regarding annual leave and public holidays entitlements which the Complainant sought to introduce at the hearing were clearly raised in the complaint form. The complaint form was copied to the Respondent. I am thus satisfied that the Respondent was on notice of the claims.

I am satisfied, given all of the circumstances of the present case, that I do have jurisdiction to permit the introduction of the new claims and to investigate these complaints.

For the avoidance of doubt, the Complainant’s representative confirmed at the adjudication hearing that the Complainant was not pursuing her claim regarding redundancy.

Second Preliminary Matter – Time limits

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act, 2015 which provides that:

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

The parties confirmed at the adjudication hearing that the Complainant’s employment with the Respondent ceased on 14 November 2021. The six-month time limit within which the initiating complaint should have been referred to the Workplace Relations Commission expired on 13 May 2022. The Complainant referred her claims to the WRC on 5 July 2022. The Complainant, therefore, lodged her complaints out of time.

Section 41(8) of the Act of 2015 provides, in effect, that the time for presenting a claim may be extended for reasonable cause shown for a further period of six-month but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim.

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

The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

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

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Labour Court also held in Cementation Skanska that the length of the delay should also be taken into account. A short delay might only require a “slight explanation” (see Quality Irish Stoves Ltd v Hughes DWT 127/2013) whereas a long delay might require “more cogent reasons”. Even where “reasonable cause” was shown, the Court determined that it should still consider if it was appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.

For the sake of completeness, I will address the Complainant’s representative’s reliance on Grosvenor Cleaning Services Ltd v SIPTU (I note that incorrect reference number DWT071 was provided. The Labour Court decision that was exhibited at the hearing appears to bear reference number DWT0440). I have carefully reviewed the Labour Court determination relied upon. In Grosvenor,  it appears from the Determination of the Court that the cleaning contract on which the claimants had been employed was transferred to another contractor with effect from 31 March 2003. The Court held that;-

‘The leave year runs from 1st April to 31st March. Having regard to the terms of section 20(1) of the Act, and in particular to section 20(1) (b), the latest date on which the Company could have complied with the Act would have occurred several weeks before the 31st March 2003. Hence, at the time the claimants ceased to be employed by the Company, and the putative transfer took effect, their right to leave had been contravened and the Company was in breach of its statutory duty to provide that leave.

It is clear, following the decision in the Royal Liver case, that the employees had a cause of action against the Company prior to the transfer.’

In Top Security Ltd v group Of Workers DWT071 the Labour Court held that;-

‘In the instant case the transfer took effect on 12th December 2005. The leave outstanding at that time related to the leave year commencing 1st April 2005 and ending on 31st March 2006. It is clear that where the full leave entitlement is not given a contravention of the Act crystallises at the end of the leave year. At the date of the transfer the leave year had not expired and so the Respondent could not have contravened the Act by failing to provide the outstanding leave.

In accordance with the Regulations (and it is agreed for the purposes of this case that the Regulations did apply) the responsibility to grant outstanding leave within the leave year transferred to the transferee. If the Court were to take the view that a transferor could discharge its liability to employees in respect of outstanding holidays at the date of transfer by paying the economic value of the outstanding leave, this would amount to sanctioning payment in lieu of holidays where the employment relationship is continuing. Alternatively, it would contravene the principle, at the heart of the Directive, that the employment relationship continues uninterrupted where an undertaking is transferred. As a matter of domestic and Community law, neither option is open to the Court.’

The Court in this decision addressed the Grosvenor case and noted that :

‘In its consideration of the case the Court first noted that all of the leave years to which the leave at issue related had expired. Thus the cause of action which accrued to the Claimants was in respect of the Respondent’s failure to discharge its statutory duty to provide them with the annual leave to which they were entitled. The Court held that what it was being asked to do was to allow the transferor to use the Regulations as a shield to escape liability for the contraventions of the Act which it had committed and to make the transferee, which was wholly innocent of any wrongdoing, liable in its stead. The Court went on to hold that in the circumstances of that case it would be unconscionable to allow the Respondent to avoid responsibility (and thus profit) for its own wrongful actions by relying on a statute which was intended to be in ease of employees.’

The fact in the within case are substantially different to Grosvenor relied upon and rather resemble those of Top Security. There was no dispute that, for the purpose of this case, the transfer of contract from the Respondent to the transferee came within the ambit of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and the date of the transfer was 14 November 2021.

Therefore, I cannot accept the Complainant’s assertion that, in terms of the relevant time limits provided for in the legislation, the clock started ticking some four months post the transfer.

In the within case, the Complainant’s employment with the Respondent ceased on 14 November 2021. On her own evidence, she had the benefit of legal advice from January 2022. The Complainant’s explanation as to why her complainant was not referred earlier was that she was waiting for correspondence from the Respondent.

Having considered the Complainant’s submission in support of her application to extend time to refer the within complaints, I find that the circumstance cited does not constitute ‘reasonable cause’ within the meaning of section 41(8) of the Act of 2015. That being the case, I see no basis to extend time.

I find that the complaint CA-00051564-001 has not been referred to the Director General of the WRC within the time limits provided for in the Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

I declare this complaint to be not well founded.

I find that the complaint CA-00051564-002 has not been referred to the Director General of the WRC within the time limits provided for in the Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

I declare this complaint to be not well founded.

I find that the complaint CA-00051564-003 has not been referred to the Director General of the WRC within the time limits provided for in the Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

I declare this complaint to be not well founded.

Annual leave- public holidays- terms of employment- time limits