Complainant

Respondent

Parties

Elaine  Corkery

 River Lee Dental ltd (amended on consent)

Representatives

Terence O'Sullivan TJOS Solicitors

Donncha Kiely BL instructed by Martin Harvey Solicitors

Act

Complaints 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-00048733-001

21/02/2022

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-00048733-002

21/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00048733-006

21/02/2022

On 21 February 2022, the complainant, a Dental Nurse, through her Solicitor, submitted a number of complaints against the Transferor and Transferee of a Dental practice, which changed ownership in July 2021.

This case is conjoined with ADJ 37705, (Transferor) and both cases were heard together.

On the first day of the remote hearing, January 16, 2023, Counsel for the first Respondent, Mr. Kiely BL instructed by Aimee Purtill at Martin Harvey Solicitors, raised a lack of clarity with the details of the claims and the lack of formal submission.

The Complainant is represented across both cases by Terence O’Sullivan Solicitors. Final submissions were received on February 15,2023, which followed earlier clarifications of the claims.

I granted a brief adjournment of the Remote proceedings on January 16, 2023. On that day, the parties indicated that the matter may resolve informally. This did not transpire. The parties returned to an in person hearing on February 20, 2023. Both sides had indicated that they had preference for an in-person hearing. I sought written submissions prior to the hearing resumption.

Issues around annual leave and public holidays were resolved and CA-00048733-004 and CA-00048733-005 were withdrawn at hearing on 16 January 2023.

During the conjoined hearing, Dr B referred to a meeting held with the complainant in June 2021 prior to the transfer, where both his and the Complainants signatures were subsequently recorded. The letter was exhibited at hearing in Dentist B documents. The Complainant was recalled addressing these contents.

I requested the letter to place on both files. I received a copy of the letter on 23 February 2023. The Complainant Solicitor addressed the topic at hearing and did not make further submissions on receipt.

All three witnesses gave evidence under affirmation.

The Complainant had been employed as a Dental Nurse with the Transferor from October 1, 2018, until the business transferred ownership   on July 1, 2021, to the Respondent, the transferee.

On 11 January 2023, the Respondents Solicitors raised a lack of particularisation of the claims advanced and sought such details.

On 12 January 2023, the Complainants Solicitor clarified the background of context for the claims.

The Complainants Solicitor outlined that the complainant had been treated so badly on her return to work from protected leave and penalised. This culminated in an extended period of sick leave from October 14, 2021, for stress and anxiety, returning to work one year later on October 20, 2022.

 Sick leave was unpaid, and loss of salary stood at €39,382.

The Complainant sought to apply for an extension of time for reasonable cause.

CA-00048733-001

The complaint stated that the Transferee did not ensure that the complainants’ terms and conditions transferred from the Transferor.

The Complainant submitted that while on unpaid maternity leave, the complainant was advised of a transfer of undertakings of the dental practice. She was assured that no changes to terms and conditions would arise.

 On 30 August 2021, on her return from maternity leave followed by holidays to 17 September 2021, she discovered changes in her terms and conditions, whereby her working hours increased by 2.5 hrs.  She had also lost her right to paid sick leave.

CA-00048733-002

The complaint stated that the Transferee did not observe the terms and conditions transferred from the Transferor.

CA-00048733-006

The complaint stated that the complainant had not been allowed to return to work on expiry of her maternity leave.

The Complainant relied on section 26(1) of the Act that she was faced with less favourable terms and conditions on her return to work post protective leave.

The complainant relied on the Labour Court case of G4S Secure Solutions (Ireland) ltd v Kelly ADE/19/8.

Preliminary Issue on Time limits

On 31 March 2022, in response to the WRC notification of a time limits issue, the complainants Solicitor outlined that the Transfer of Undertakings occurred during the complainants’ maternity leave. February 2021 to September 2021. She was unaware of any changes until her return to work.

An extended period of medically certified sick leave followed and served as the reason for the delay in submission of the complaints. An application to extend time was submitted in the alternative to a submission that an awareness of the change centred on 17 September 2021, which fell within the statutory time limits.

On 20 February 2023, during the resumed person, held in person, Mr O’Sullivan for the complainant presented an overview of the case.

The Complainant had initially worked a 37.5-hour week from 2018, altered in January 2020 to 35 hrs. These changed terms were not committed to writing. She received paid sick leave. A contract of employment was issued and signed in 2019.

In July 2021, during her maternity leave, the business changed hands. This change was notified in May 2021 by phone. A meeting occurred in July 2021 with both Transferor and Transferee and no difficulties were noted or anticipated on transfer.

The Complainant resumed work on 17 September 2001. On that Friday, she sought to go home at the habitual 5 pm but was informed by the Transferee that she had to remain until 5.30pm

The Complainant believed that she had been unfairly depicted as a “liar “and became very distressed.  She did seek to resolve the issue but was unsuccessful. She commenced on sick leave some 4 weeks later.

She experienced a deterioration in her mental health and was nervous and anxious as a result of her work experiences.

The application to extend time on reasonable cause reflected those circumstances as the complainant was neither capable nor present enough to advance her issues.

Mr O’Sullivan drew on a previous Adjudication Decision 5246 of an Executive Chairman and A Charity, where reasonable cause was granted in equity.

He submitted that the complainant had lost €39,000 gross in unpaid wages, not reflective of DSP paid. She has also lost €720 for 6 days lost.

Evidence of the Complainant:

The Complainant outlined that her job was 35 hrs. When she started in 2018, she was the only dental nurse and she worked 37 hrs.

In November 2019, the second Dental Nurse went on maternity leave (January to November 2019 and returned in 2021 on a part time basis) and working time encroached into lunch breaks for her. At that time, the Transferor, Dentist B, apologised for this, “sorry about that, chief” but did not pay her for the additional working time.

In January 2020, the complainant called a meeting in the workplace and agreed a gross pay of €757 and paid sick leave.

The Dental practice transferred ownership on July 1, 2021.

During May 2021, Dentist B had phoned her and told her that “someone was joining the team, there would be no change, but Dentist A will be signing the cheques “

There were no minutes of the meeting of July 2021, which occurred in the waiting room. Attendees were both Dentists and both Dental Nurses.

Historical verbal agreement 35 hours

The complainant resumed work on 17 September 2021 and the issue of 5.30 pm finish arose on that first day. Dentist A confirmed she would discuss the 2.5 hours extra claimed with Dentist B. The complainant felt disregarded as she was now working with both Dentists.

By 14 October 2021, the pressure was building up and she wanted the hours issue resolved. She became upset and cried a lot.

Dentist A confirmed that the current hours prevailed at the practice and Dentist B, reliant on the contract, “had washed his hands on it “. She was accused of misrepresenting the hours.

The complainant outlined that she had been treated very badly and developed serious stress. She felt blamed by Dr A when she remarked on her higher-than-average pay, where the implications for a 35-hr week would amount to a 7 % loss.

The period of October 2021 - January 2022 was an “awful place “She texted Dentist A to sort things.

She recalled the meeting of January 20, 2022, and just knew going through that door that no resolution would be available. She decided that she had better look for another job. Dentist A agreed and did not seek a reason. She was requested to return her uniform and keys and felt that nobody cared.

The Complainant said that she went home and said “no, it shouldn’t be like this “She sought advice and submitted her complaint to the WRC. She outlined that she was consumed with the issue of being referred to as a “liar “and withdrew from everyone, including her baby. This required family intervention.

The Complainant said that she had been offered anti-depressant medication and referred to the period as “the lowest point of my life “

During cross examination, the complainant in referring to the 14 October meeting, said that Dentist B had told her the “early finish “and “paid sick leave “were “gestures “

By January 2020, she was the only Dental Nurse at work and she was certain that hours and money were discussed, and the 35-hour week agreed.

The format of which was “start later and finish earlier “2.5 hours or time off in lieu, on return. This was not committed to writing.

The Complainant confirmed that she had not read her contract.

She denied that a partial payment of sick leave during her maternity leave “was a gesture “

The Complainant denied receiving the June 28 letter but did acknowledge that her signature was on that letter. She told Counsel that she had not read it. The Complainant confirmed that she signed it in the Surgery.

She pinpointed her awareness of change as 17 September 2021, when Dentist A asked her “what are you doing “when she sought to leave at 5 pm

Dentist A agreed to consult with Dentist B. the complainant was troubled as the July meeting had protected “whatever Dentist B had in place will stay in place “

The Complainant confirmed that she had not received either a formal diagnosis or a medical report of her mental health condition.

The complainant reflected back on the January 2022 where she felt uncomfortable having been depicted as a “liar “and she just knew that her job was gone.

The complainant said that she wanted her job, but she wasn’t wanted and believed it best to look for new work.

Dentist A had followed her up for a resignation.

In redirect, the complainant confirmed that the Oct 14 meeting was suggested by Dentist A and the accusation of lying emerged from Dentist B. The meeting lasted 20 -30 mins.  

In clarifications, the complainant confirmed that this was her first job as a Dental Nurse. She confirmed that she had written in the contract terms as requested by Dentist B

The Complainant was clear that Dentist B was aware of the 35 hours.

She recalled having a dental check-up arising from a toothache in June 2021

The other nurse started at 9.15 am.

She had not availed of the anti-depressants suggested and she had not received a mental health diagnosis.

The Complainant said that she felt better from July 2022 onwards.

There was no validation process or log or diary of the 35 hours.

The Complainant did not answer why she had not activated the grievance set out in the policies.

The value of 5 pm finish was to assist with childcare and to meet her parents.

In his concluding remarks, the Complainants’ representative emphasised that the complainant’s mental health kept her from submitting her complaint in time and this justified the application to extend time.

 Financial Losses had been large for the complainant.

This is a job she loved and had certainty in the salary and 35-hour work pattern. She was assured no change would follow TUPE and she expected to make a seamless transition from maternity leave.

Dr B had not recorded the OWT 1, which would have demonstrated a true record of 35 hours.

Mr O’Sullivan paid tribute to his client’s fortitude in the case. He did not dispute that she was called into the workplace on June 28, 2021

He clarified that he was not relying on custom and practice to ground his case but rather on the contractual provisions agreed with the complainant and the transferor in 2020.

The Respondent came on notice in the case on 11 April 2022 and denied the allegations.

The Respondents acknowledged that an issue of 6-month statutory time frame had been raised in the case. The Respondent also corrected the respondent legal title.

CA-00048733-001 This claim is out of time and denied.

CA-00048733-003 This claim is out of time and denied.

CA-00048733-006 This claim is a duplicate to that of the TUPE Regulations and denied.

Preliminary Issue on time limits:

The Respondent submitted that the date of alleged breach of the TUPE Regulations is July 1, 2021, the six-month window of time permitted in accordance with Section 41(6) Workplace Relations Act, 2015 expired on January 1, 2022.

Counsel for the Respondent argued that the complainant had sufficient time and awareness of the transfer in which to make her complaint to the WRC. The Respondent could see no basis for an extension of time on reasonable cause.

Dept of Finance v IMPACT [2005] ELR, where the Labour Court set out the principles to consider in an application for an extension of time.

The Respondent followed the case on appeal to the High Court, where in

Minister for Finance v CPSU [2006] IEHC 145,

 Justice Laffoy addressed the “question of when the time limit in question will run from. para 48/49, the six-month time limit should run from the date of the alleged breach and not the date of knowledge of the complainant.

“…… further, under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of a claimant …. does not prevent a statutory limitation period from starting to run “

Substantive Case:

Counsel for the Respondent gave a background account of two employees, who transferred employment in July 2021.

He recounted that a tri partite meeting had occurred where the complainant met with both the Transferor and Transferee in the Dental surgery. The Complainant claims for enhanced terms and conditions are not in accordance with her contract live on transfer in July 2021.

Dentist A had sought clarification from Dentist B, but there was no merit in the claim made. There was no evidence or documents of January 2020 changes of pay, terms and conditions, as were relied on by the complainant.

Counsel objected to the application for an extension in time on reasonable cause.

He submitted that there was a lack of medical evidence. The Complainant had ample opportunity to lodge her claims within 6 months. The business meetings were mannerly.

Counsel identified a duplication in both claims submitted under TUPE Regulations and the Maternity Protection Act. There was no agreement to pay sick leave and no claim under payment of wages had arisen.

He concluded that the business has limped through 2020 on both a sessional and closed basis.

Counsel called on the application of the Supreme Court case of Noreside Construction ltd and Irish Asphalt ltd, 2014 “what were the terms of the contract between the plaintiff and the defendant (express or implied) for the purchase and sale of the aggregate? “

The Supreme Court held that Irish Asphalt had failed to establish that its terms and conditions were incorporated into the contracts with Noreside on any basis.

In drawing from Mc Dermott on contract Law, which sets out a number of requirements that must be fulfilled before a custom would be implied into a contract.

1 notoriety arising from parties known of it and intended it should form part of the contract.

2 customs must be certain.

3 customs must be reasonable.

4 judicial notice contingents on clear and convincing evidence

5 not be inconsistent with the express contract.

O Reilly v Irish Press [1937] ILTR 194, refers.

Evidence of Dr A.

Dr A submitted that she had purchased the business on July 1, 2021. The business employed two Dental Nurses. She understood that the complainant was employed for 37.5 hrs 9am to 5.30pm for €600 nett. The other Dental Nurse worked 9.15am to 5.45 pm.

Dr A recalled having a pretransfer meeting with both Dentists and both Dental Nurses where the prospect of a new boss at the business was discussed and an announcement of “no change “She was uncertain of the date.

Dr A told the hearing that she was unaware of 35 hrs as the complainants working week.

On 17 September 2021, the complainant said that she usually finished at 5pm on Fridays. Dr A had a patient booked in.  The Complainant also mentioned the 35 hrs also. Dr A undertook to seek clarity from Dr B.

Dr B re-enforced the application of the contract, and the only gesture was a half an hour early finish on Fridays.

Dr A said that she was happy to give the Friday 5pm finish and she understood this was accepted.

Dr A understood that the complainant wanted to work 35 hrs for the same pay.

Dr A sought to scope out whether there was a record of the 35 hrs anywhere. The complainant said that it was in “day books “but neither exhibited nor shared these.

Dr A said that she suggested the meeting of 14 October, 2021as a three-way meeting and was met by a reluctance from the complainant, who said she was uncomfortable.

Sher recalled that the complainant told both Dentists that “ye are making me out to be a liar “but she had not called her that.

Sick leave followed for many months.

The Complainant requested to meet in January 2022, where, in a matter-of-fact manner, she told Dr A that she had decided to finish as it was not working for either of them.

Dr A recalled that they hugged and wished each other “best of luck”.

The Complainant followed up seeking holiday pay but refused to forward a written resignation. A Solicitors letter followed.

Dr A submitted that she had not observed a frailty in the complainant’s mental state.

During cross examination, Dr A denied stating that she had accused the complainant of lying. She confirmed that she was a “super “Dental Nurse, who was friendly to patients.

Dr A confirmed that she paid for some sick leave in October 2021 but not for the entire 12-month absence. she did not have the OWT form of record of hours.

In redirect, Dr A confirmed that the 35-hr request was linked to childcare by the complainant.

In clarification, Dr A confirmed that she had been notified of the complainants return from maternity leave and the associated holiday pay had been jointly covered by both Dentists at the practice. Dr A confirmed that the complainant had not reported a depression but rather work-related stress. The complainant was not comfortable to sit down with Dentist B.

The Respondent exhibited the complainants email copied to both Dentists dated 11 October 2021.

This captured the complainants’ concerns.

1 noted inconsistencies between the written contract v verbal agreement on working hours.

2 37 hrs working week inclusive of a minimum of two hours in lieu.

3 pay increase on completion of completion of training course during maternity leave.

A request to clarify issues with Dr A and a written response.

Evidence of Dentist B, Transferor

Dr B has had 46 years in Dental practice, reverting to part time status, 2 days per week in July 2021, post-sale of the business.

He recalled sending a text to both Dental Nurses on 17 May 2021 and confirmed that the business was changing over.

He confirmed that the complainant was hired on 37.5 hrs per week and there was no provision for sick pay.

He contextualised the contract issued as having arisen during the due diligence in preparation for the sale of the business.

He recalled that the complainant “was never really sick “during her employment with him.

He told the hearing that he had no recollection of the complainant raising a grievance in January 2020, nor did he recall a meeting or changed conditions of employment.

He said any queries are placed before the practice Accountant.

Dr B said that Covid pandemic enforced closure of the business 13 March to 25 May 2020.

He confirmed that 5pm Friday finish had been “gifted “and the objective was to “try and leave at 5pm on Fridays “This was not always possible due to the obligation to have a female chaperone.

He submitted that he had not identified an accrual of 2.5 hrs per week for time in lieu purposes. He stated that he had completed a 34-page asset sale and placed all relevant information on the “Tupe form”.

The letter of 28 June 2021 was prepared by his Solicitor, and he issued it on instruction. He confirmed that his was the second signature. No objection was raised by the complainant, and he considered the transfer a success.

Dr B confirmed that he gave a true reflection of events.

During cross examination, Dr B confirmed that the second dental nurse covered the complainant protective leave. The business was open 2-3 days a week May to November 2020.

He restated the absence of OWT records or starting times. He denied ongoing conversations on 35 hrs and categorised it as “not viable “.

When the complainant’s solicitor put to him that his recollection was at variance with that of the complainant, he repeated that 35 hrs was not viable.

He confirmed that he didn’t wish to penalise the complainant in case of illness and that yes, he had suggested a 3-day week to her as he had concerns on her adjusting to being a new Mam on leaving home very early and dropping the baby.

He maintained that all conversations were polite and did not encompass a 35-hr week.

He took the initiative in October to approach the complainant. He was taken aback by the complainants’ response when she told him “I don’t want to talk about it, email me “Dr B said that he clarified the terms of employment directly with Dr A

In his closing remarks, Counsel for the Respondent emphasised that the complainant had not met the test on medical or other evidence for an extension of time by means of reasonable cause.

He said that there was a direct conflict in the evidence on the contract and the daily finish time.

The Complainant had not succeeded in clarifying the “recorded workable system “surrounding the 35 hours. It did not amount to a custom and practice. The contract prevailed in this instance.

Counsel argued that the claims were prohibited in advancement on the preliminary issue.

I have been requested to make three decisions in this case. In reaching these decisions, I have had regard for both sets of written submissions, the oral evidence adduced, and the representations made by each party.

I have also had regard for the letter dated 28 June 2021 as detailed in Dentist Bs evidence and on which the complainant was recalled to address. I received a copy of this letter post hearing as requested. The letter was addressed at hearing by the Complainants representative.

 The Complainant denies receiving a copy of this letter from Dentist B. Both the Complainant and Dentist B acknowledged that they signed the letter. There is no reference to TUPE Regulations in this letter or obligations arising.

Coming as it did 2 days before the occurrence of transfer, it most certainly showed a deviation from the 30-day time limit associated with the Regulations. Coming as it did in the context of a professional appointment shows a casualness in the boundaries between the Complainant and Dentist B on employment issues.  

By way of background:

EU Acquired Rights Directive 2001/23/EC was transposed into Irish Law in SI 131/2003European Communities (Protection of Employees on Transfer of Undertakings)

CA-00048733-001 and CA-00048733-002 are submitted against this Legislation.

These regulations shall apply to any transfer of an undertaking business or part of an undertaking or business from one employer to another employer as a result of a legal transfer.

The retention of identity is a key criterion for a transfer of undertakings Spijkers C- 24/85

1 type of business

2 transfers of tangible assets

3 values of intangible assets at time of transfer

4 takeovers of the majority of the employees by the new owner

5 transfers of customers

6 degrees of similarity between the activities carried out prior to and post transfer.

7 period, if any of suspension of activities

It is common case that a Transfer of Undertakings occurred on July 1, 2021, in this case. Dentist A as Transferee took over the running of the dental practice which retained its identity from Dentist B, while the complainant was on maternity leave.

 It is clear to me that while Dentist B referred to the transaction as an “Asset sale” in his evidence the business retained its identity, staff and customers post transfer and is indeed an entity covered by the TUPE Regulations. It is regrettable that despite the preparation for and advice received around the transfer, that the Header of TUPE Regulations was not utilised by either party in this case.

 I am struck by this omission which goes to the root of this case as I have observed that the complainant was confused on the application of these Regulations.

Running at the heart of this case rests a reliance by the complainant that terms known to her and practiced by her from 2020 were not preserved on her return to work following a change of ownership.

Equally central to this case is the insistence by the respondent that the terms advanced by the complainant were never encapsulated by means of a static collective agreement or custom or practice, nor where they protected by contract. Dentist A made focussed submissions on her inquiries in that regard. She said that there were no portable terms outside those set down in the contract.

Dentist B approached the case with the illuminating letter of June 28, 2022. Unfortunately, once more the Header of TUPE was omitted.

This forms the chronological background in the case.

I have the greatest respect for all parties involved in a transfer of business. I understand that it must be an arduous process. That is why the dual responsibility road map which arises under the TUPE Regulations must be followed stringently by both parties in the interests of the employees.

I have often observed that for an employee the process of transfer can be felt as a “compulsory adoption “, especially if in the pursuance of continuity, of employment there are no alternatives to transfer offered.

In considering the facts of this case, my attention was drawn to a legacy EAT case under the chair of Penelope Mc Grath in:

Jean Moran Saval and Bloxham Stockbrokers UD 377/2002

The facts of this case arose from the interspersal of maternity leave through a Transfer of Undertakings, where the complainant sought a committal of transfer terms, inclusive of severance to writing prior to informing her employer that she had another job.

The case was reflected by the EAT as one of Constructive Dismissal “arising from the failure of her potential employer of to adequately inform her of her contract of employment and terms of employment in a situation where her employment was being taken over by the Respondent company in a Transfer of Undertakings situation”.

I found some overlap in the background in both cases as the EAT reflected that there was “an extremely pressurised time for all parties concerned “the complainant had the added factor of pregnancy and imminent protective leave.

The Tribunal went on to make a very incisive commentary in

“The Tribunal accepts that the applicant was well within her rights to question the terms of the proposed contract of employment with company B. However, the Tribunal does not accept that the Applicant could not have tried to negotiate the terms wither with the manager in company A or the partner in Company B, who was known to the applicant and with whom she seems to have had a reasonably good rapport “

I draw on this case as background for the consideration of the parties and nothing turns on it in this case.

The claims

 The Complainant has raised three contraventions of legislation which arose as a result of this transfer of undertaking.

CA-00048733-001 and CA-00048733-002

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00048733-006 is submitted under the Maternity Protection Act, 1994.

All claims are denied by the Respondent.

Preliminary Issue:

The issue of statutory time limits must be addressed in the first instance:

Time limits.

The Respondent has argued that the clock started ticking from the date of the transfer of business i.e., July 1, 2021, and that claims submitted on 21 February 2021 place the claims outside of the statutory time limits applicable under Section 41(6) of the Workplace Relations Act 2015 and do not warrant an extension of time by reasonable cause in accordance with Section 41(8) of that Act.

The Complainant has requested leniency and has canvassed strongly for an extension of time in the case by referencing that the complainant suffered a mental health condition as a result of the negative workplace experiences on her return from protective leave / holidays on September 17, 2022. A period of illness followed in mid-October 2021 and improvement followed by July 2022 and the complainant resumed work in October 2022. This kept her away from filing an earlier complaint.

In the alternative, the complainant has argued that consideration should be given for her first awareness of the changed terms on 17 September 2021, which renders the claims in time.

I have listened carefully to all witnesses. I have reflected on the oral advocacy. I have read and re -read the submissions forwarded.

 I have formed the view that the circumstances of the case are very sad.

 Here, I find an established Dentist B who was in the process of career consolidation and succession planning during 2019 to 2021. During which time, the business hosted two maternity leaves and an extended period of partial and full closures due to Covid. It is clear that the Complainant and Dentist B got on well as demonstrated in him referring to her as “Chief “.

 I also find a Dental Nurse on the cusp of her career consolidation in Dentistry by qualifying in the field during her protected leave in 2021.

I also find Dentist A, as Transferee, who was on the brink of a new direction in her career as a Managing Dentist. I found Dentist A to be an excellent witness in this case.

 I would have liked to have seen contemporaneous records of engagement from all three witnesses, but that was not to be, short of the June 28 notification of transfer, which in truth fell outside the statutory notification period of not later than 30 days and which the complainant submitted was not provided to her in the aftermath of her signature.

My jurisdiction on statutory time limits arises from Section 41(6) of the Workplace Relations Act 2015

(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.

Section 41(8) permits me to extend that time to 12 months if I am satisfied that failure to present the complaint to the WRC within 6 months was due to reasonable cause.

The equitable remedy of reasonable cause has been much considered, debated, and ruled on by the WRC and Labour Court

The seminal decision on granting an extension of time for good reason in Judicial review proceedings was Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, which reflected proceedings pursuant to Order 84, Rule 21 of rules of Superior Courts 1986. 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 clear that the test must be an objective one and the Court should not extend the time merely because the aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (what the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay

The Labour Court has set down the recognised test for whether an extension of time should be granted in

Cementation Skanska v Carroll WTC 0338 in October 2003, approved in Minister for Finance v CPSU and others [2007] 18 ELR 36.

…. 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.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Hence the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

The Respondent in the instant case has articulated strongly against any extension of time. The Complainant has sought leniency and a consideration of the application of a WRC case of the Executive Chairman and a Charity

 I find that the facts are not on point with that case as the delay arose from the representative’s management of the case.

In the instant case, I have been requested to consider that the complainant was prevented from filing a complaint to the WRC within the 6 months of transfer of business of July 1, 2021, due to her illness which she attributed to how she was treated by the Respondent on her return to work, having had her first child.

The date of the complaint lodged with WRC is February 21, 2022.

I can fully accept that the Complainant was on protective leave during the transfer of the business and her job and its progression to a new legal entity were understandably not at the fore front of her mind. She did not raise any issue regarding her notification of going back to work which occurred during the tenure of the transferee.

The issue at the centre of the case arose on 17 September 2021, some 10 weeks post transfer.

All parties addressed the email from the complainant to both the Transferor and Transferee dated 11 October 2021

This is an extremely well written email and contained a declaration that the complainant had adopted a practice of accruing 2 hrs per week since January 2020. It did not reflect arrangements during the business closures in 2020 relied on by Dentist B.

Of interest, it states that in the case of disagreement, the complainant was open to having a conversation with Dr B.

I find that the conversation which followed on October 14 was led by Dentist A. I accept the evidence of Dentist B when he told the hearing that the complainant did not wish to engage with him.

Surely, that captured an impasse in industrial relations terms worthy of consideration of a third party.?

Instead, the Complainant proceeded on a yearlong sick leave, which she attributed to the respondent.

I had cause to probe the complainant’s evidence on her stated lack of being present in the workforce and an overarching illness during the 6 months July to December 31, 2021.

I found that she had not been given a mental health diagnosis, neither had she accepted the medical suggestion that she avail of anti-depressant medication.

In the absence of medical evidence, I have no way of distinguishing the cause of illness during this time. I have taken some direction from the evidence of Dentist A when she told the hearing that she did not notice anything untoward regarding the complainant’s health from September 17 to October 20, when she described her as a high functioning Dental Nurse.

I have considered the period from October 20 to December 31, 2021, which was covered by sick notes certified by a doctor.

The complainant did not advance a medical note from that source which demonstrated her inability to complain to WRC during this period.

I have considered the complainants evidence that she had suffered during this period and described a personal distance from her baby which prompted familial intervention.

I fully accept that the complainant had a difficult time here. I also fully accept that she overlooked her signature on the June 28 letter issued 2 days prior to the sale.

However, while this goes some way to explaining the delay, I regret that it does not excuse the delay as I cannot identify a reasons or reasons for the complainant’s failure to present her case in time.

An equitable extension of time for reasonable cause is, in my opinion reserved for situations where the opportunity to write a complaint was placed out of reach of the complainant.

I accept that the complainant demonstrated a vulnerability when she returned to work on September 17, 2001. Here she was being asked to work to a new boss and without any of the familiarity or autonomy held in the previous regime.

I found that she had an awareness that she had an unresolved grievance at the very latest October 14, 2021, and most certainly when she commenced an extended sick leave some 6 days later.

To make a complaint to the WRC requires a brief statement of complaint, which as followed in this case can be expanded later in time for the hearing.

I have a heartfelt sympathy for the complainant in seeking to adjust to a new working life bereft of her previous reliance on a time in lieu system, approved or unapproved. I can understand her feelings of aloneness.

However, on balance, I cannot accept her submissions that a worsened mental health condition prevented her making an earlier application to WRC when a material record or independent validation of that condition did not accompany the application to me.

It is clear to me that by October 11, 2021, the complainant was taking advice in her case such was the clarity of October 11, 2021, email.

I appreciate that this was the complainants first position as a Dental Nurse, however the employment policies which traversed both employments provided for an    interesting disputes resolution mechanism which was not utilised beyond the October 14, 2021, meeting.

I find that the complainant was aware of a dispute in her recollection of terms of time in lieu, sick leave, and an expectation for enhanced pay on qualification as a dental nurse no later than October 14, 2021.

She did not activate the internal disputes resolution procedures after that date. I found that the Respondent was open to maintaining a dialogue on this issue. I noted that the half hour on Fridays had been conceded, for example.

I must conclude that I have not identified circumstances which prevented the complainant from raising her complaints with WRC within the 6 months after the transfer date of July 1, 2021.

As I have not identified this circumstance to justifiably excuse the delay, I am unable, on this occasion to extend time through the equitable remedy of reasonable cause.

I do not agree that time starts ticking from September 17, 2021. I have considered the complaint through the date of transfer as July 1, 2021.

I have found that the complaints are statute barred and I am precluded from making a decision on the substantive case.

CA-00048733-001 Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

I have found that the complaint is statute barred and I am prohibited from making a decision in the substantive case.

CA-00048733-002

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

I have found that the complaint is statute barred and I am prohibited from making a decision in the substantive case.

CA-00048733-006 Maternity Protection Act 1994

 Section 26.— (1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—

(a) with the employer with whom she or he was working immediately before the start of that period or, where during the employee’s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence], with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,

(b) in the job which the employee held immediately before the start of that period, and

(c) under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, and (in either case) under terms or conditions —

(i) not less favourable than those that would have been applicable to the employee, and

(ii) that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled,

if she or he had not been so absent from work

I note that the complainant had two weeks annual leave prior to her return to work on September 17, 2021. Her maternity leave expired on September 3, 2021

The clock started ticking on this claim on September 3, 2021.

I fully accept that the complainant’s employment transferred to the Respondent from July 1, 2021.

However, I have not found a contravention in the legislation as I found that the complainant returned to her same job and was in possession of the identical contract of 2019.

Having taken some time to consider the terms applicable to the complainant for the purposes of this legislation, I cannot arrive at a certainty that the time in lieu arrangement presumed by the complainant amounted to an operative agreement.

The year attributed as the genesis of this Agreement was a rocky trading one with extended periods of partial and full closure. The complainant commenced maternity leave in February 2021.

While I accept that there may well have been a benevolence in the working relationship with Dentist B, I cannot find that it amounted to an agreement such as a static collective agreement or contractual amendment.

In my opinion, the complainant did operate a time in lieu system on a random basis, but it was not a joint agreement capable of preservation post transfer. It was not recorded or identifiable under scrutiny.

I am strengthened in my view of this by Dentist B reference to the complainant as “Chief” which I saw as a term of mutual respect.

It may well have assisted the parties to have had a more in-depth conversation on notification of the complainants return to work in terms of work patterns and lea way within the working week.

I have not established a contravention of Section 26 of this Act.

The claim is not well founded.

CA-00048733-001

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 (S.I. No. 131 of 2003) requires that I make a decision in according with the relevant redress provisions.

 I have found that the complaint is statute barred and I am prohibited from making a decision in the substantive case.

CA-00048733-002

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 (S.I. No. 131 of 2003) requires that I make a decision in according with the relevant redress provisions.

 I have found that the complaint is statute barred and I am prohibited from making a decision in the substantive case.

CA-00048733-006 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.  Section 30-31 of the Maternity Protection Act, 1994 requires that I make a decision in accordance with Section 26 of the Act.         I have found the complaint to be not well founded.

Transfer of Undertakings Regulations / Maternity Protection Act, 1994