ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00035957

Parties:

	Complainant	Respondent
Parties	Richard Fox	Apoca Parking Ireland Limited

	Complainant	Respondent
Anonymised Parties

Representatives

Self-Represented

Mr. Thomas Ryan, Peninsula Business Services (Ireland) Limited

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012	CA-00046303-001	16/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046303-002	16/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00046303-003	16/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00046303-004	16/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00046303-005	16/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00046303-006	16/09/2021
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-00046303-007	16/09/2021
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-00046303-008	16/09/2021
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-00046303-009	16/09/2021
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-00046303-010	16/09/2021
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-00046303-011	16/09/2021
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-00046303-012	16/09/2021
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-00046303-013	16/09/2021
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-00046303-014	16/09/2021
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-00046303-015	16/09/2021
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-00046303-016	16/09/2021
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-00046303-017	16/09/2021
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-00046303-018	16/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046303-019	16/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046303-020	16/09/2021

Date of Adjudication Hearing: 05/05/2023

Workplace Relations Commission Adjudication Officer: Brian Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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:

The Complainant commenced employment with the Respondent in September 2015. At all relevant times, the Complainant was engaged as a car park attendant with the Respondent. The Complainant’s employment was terminated on 1st September 2021, the fact of dismissal by this Respondent is a matter of dispute between the parties.

On 16th September 2021, the Complainant referred various complaints to the Commission. While numerous legislative provisions were impleaded by way of the manual complaint form, the core allegation in relation to the same related to an allegation that the Complainant was dismissed on foot of an alleged transfer of undertaking between Apoca Parking Ireland Limited (hereafter referred to as “the Respondent”) and Pillardale Limited (hereafter referred to as “the alleged transferee”).

A substantive hearing in relation to these matters was listed for, and finalised on, 5th May 2023. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

This matter was listed alongside that of a parallel set of allegations in respect of the alleged transfee, with both Respondents having sight of their respective submissions and contesting the same in the course of the hearing. This parallel set of complaints was listed under Adjudication File Reference ADJ-00035956 and this decision should be read in conjunction with the same.

Whilst there was no great dispute in respect of the factual matrix in relation to this complaint, an Operations Manager and HR Manager attended to give evidence on behalf of the Respondent. The Managing Director of the alleged transferee gave evidence in respect of their position, while the Complainant gave evidence in support of his complaint. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

Following the delivery of the relevant evidence, the various complaints referred by the Complainant were examined in respect of their relevance. In this respect, it was accepted that many of the same were duplicates or inapplicable to the factual matrix and were not pursued. Regarding the parallel complaints under the Unfair Dismissals Acts and dismissal under the transfer regulations, the Complainant elected to proceed under the Unfair Dismissals complaint. These matters will be discussed in dividually in the decision section below.

Summary of the Complainant’s Case:

The Complainant commenced employment with the Respondent as a car park attendant in 2015. The Respondent is a third-party entity charged with providing car park services to a shopping centre in County Louth.

On 18th August 2021, the Complainant was informed that the Respondent had not retained the contract to provide parking services and that from 31st August 2021, these services would transfer to the entity that would take over the services, Pillardale Limited.

On the 1st September 2021, the Complainant attended for work in the normal fashion. On his arrival at work, representatives from both his previous employer and his alleged new employer were present. On this date, both representatives stated that the Complainant was no longer employed by them and submitted that he was in fact employed by the other entity.

In answer to a question raised by the Respondent denied that he had resigned his employment in July 2021. In this regard he stated that he had a disagreement with his former supervisor regarding a matter under investigation. For the duration of this investigation the Complainant was placed on a form of suspension and advised not to attend work. Following the completion of the investigation procedure, the Complainant returned to work as normal and continue to work until the date of the alleged transfer.

In evidence, the Complainant stated that he spent the vast majority of his time working at a single premises. He submitted that he was unsure as to whether a transfer occurred in this instance, however he stated that either the alleged transferee or the alleged transferee dismissed him in contravention of the Unfair Dismissals Act.

Finally, the Complainant submitted that he was not provided with adequate rest breaks during his working time with the Respondent.

Summary of the Respondent’s Case:

The Respondent is a large provided of parking services to various third parties. The Complainant was engaged by the Respondent as a car park attendant from 2015 at a shopping centre in in County Louth.

For the year prior to the relevant period, the shopping centre had been operated by a receiver. Following a lengthy period of receivership, Pillardale Limited, the alleged transferee purchased the premises on 1st May 2021. Thereafter, the alleged transferee entered into a short-term agreement with the Respondent to provide parking services from 1st May to 31st July 2021. During this period the Respondent entered into correspondence with the alleged transferee regarding a permanent contract for the provisions of services. Unfortunately, the parties could not come to an agreement regarding a further contract for services, and the contract finalised on 31st July 2021, with the parking services being undertaken directly by the alleged transferee thereafter. Due to the sick leave of one of the managers on site, the short-term contract was extended by another month to 31st August.

In evidence, the HR Manager of the Respondent outlined that three members of staff were permanent assigned to the shopping centre. She accepted that one of the staff members would occasionally work in another area of the business. She stated that following the loss of the contract, the three employees transferred from their company to the alleged transferee. In this regard, she stated that the correspondence outlining the statutory notification requirement was issued in 18th August 2021. She accepted that this is later than what was required, however she submitted that this arose as a consequence of the ongoing negotiations.

In evidence, an Operations Manager for the Respondent stated that he took over the management of the site just prior to the loss of the contract. He stated that the three employees assigned to the site were assigned there for the vast majority of their working hours. He stated that the Respondent did not provide any equipment to facilitate the provision of the service, but used the equipment that was on site. He stated that he was unaware of any prior undertaking from the previous operations manager regarding the employment status of the Complainant, however he stated that on the date of the transfer, the Complainant remained an employee of the Respondent and would have transferred in accordance with the TUPE regulations.

In summary, the representative for the Respondent submitted that the three employees assigned to the site were capable of forming an entity which retains its identity following the a transfer of activities. He submitted that the alleged transferee had attempted to reduce down the staffing level of the Respondent prior to the transfer in contravention of the relevant regulations. Having regard to the foregoing, he submitted that the Complainant became the alleged transferee’s employee on 1st September 2021 and consequently, the liability for his unfair dismissal rested with that organisation.

Summary of the Alleged Transferee’s Case:

The Alleged Transferee submitted that the bought the shopping centre that housed the car park where the Complainant worked on 1st May 2021. Thereafter, they entered into a period of negotiation regarding the provision of various services within the building, including car parking. Whilst these negotiations were ongoing, the Alleged Transferee entered into a short term agreement with the Respondent for the provision of car parking services.

On 30th June 2021, the Alleged Transferee confirmed to the Respondent that they did not wish to continue with contract and that the same would conclude on 31st July 2021. As the Alleged Transferee’s contact within the Respondent went on sick leave prior to this date, the contract was extended for a further month and expired on 31st August 2021.

During the brief contract between the parties, the Managing Director of the Alleged Transferee informed the Respondent that the Complainant was not to be assigned to their site. On 22nd July 2021 the then Operations Manager of the Respondent confirmed to the Managing Director of the Alleged Transferee that the Complainant was no longer assigned to the site and that he no longer worked for the Respondent. During the final month of the contract, the Managing Director was informed that, contrary to previous instruction, the Complainant had not been dismissed by the Respondent and that the Respondent’s position was that the Complainant was to transfer to the Alleged Transferee organisation. By response, the Managing Director of the Managing Director of the Alleged Transferee stated that no transfer of undertakings occurred in this occasion and that he had been expressly informed that the Complainant was no longer an employee of the Respondent in any event.

In answer to a question posed by the Adjudicator, the Managing Director of the Alleged Transferee confirmed that the other two members of staff that were assigned to the car park continued to work for his organisation. Nonetheless, he submitted that these two persons were engaged on new contracts of employment with a commencement date of 1st September. In answer to a further question, the Managing Director of the Alleged Transferee confirmed that these persons did not attend for an interview in this regard and were not subject to an express probationary period. Following a further enquiry from the Adjudicator, the Managing Director of the Alleged Transferee confirmed that following the 1st September 2021, these two employees continued in this roles as normal, with the only material difference being that they were being paid by a different entity. Notwithstanding the same, the Managing Director of the Alleged Transferee submitted that since their engagement with his organisation, these persons were subject to altered working conditions and hours.

By submission, the Alleged Transferee stated that their purchase of the shopping centre did not constitute a transfer of undertakings in respect of the three car park attendants. They stated that the Complainant remained an employee of the Respondent at all times and, consequently, they attracted no liability under the present set of complaints. Without prejudice to the foregoing, the Alleged Transferee submitted that the Respondent had actively misrepresented the position regarding the ongoing employment of the Complainant during the short engagement between the parties.

Findings and Conclusions:

The present matter involves a series of complaints, the majority of which will be determined by a finding in respect of an alleged transfer of undertakings between the Respondent and the Alleged Transferee. In this regard, the Respondent has submitted that the Complainant, and two of his colleagues, transferred to the Alleged Transferee, with the loss of their service contract, on 1st September 2021. In the alternative, the Alleged Transferee submitted that no transfer of undertakings occurred in this instance and that the Complainant remained an employee of the Respondent at all times. They further submitted that the Respondent made various misrepresentations during the negotiation process.

In this regard, Regulation 3(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003 provides that,

“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 (including the assignment or forfeiture of a lease) or merger.”

Subsection 2 goes on to defines these terms in the following manner,

“transfer” means the transfer of an economic entity which retains its identity;

“economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.”

The in the matter of Spijkers v Gebroe Benedik Abbatoir CV[1986] ECR 119, the ECJ outlined a set of criteria which provide guidance when it comes to deciding whether a transfer of undertakings has occurred. The criteria, known as the “Spijkers Criteria” are as follows:

1. Was the undertaking a stable undertaking, with an ongoing life of its own?

2. Has the entity retained its identity?

3. Have some or all of the staff been taken over by the new employer?

4. Has the customer base transferred?

5. Are the activities post-transfer similar to those carried out before transfer?

6. Has there been an interruption of the activity?

7. Has there been a transfer of assets?

In the matter of Overpass Ltd T/A Ocean Property Management v Clancy [TUD 1713], the Labour Court held that the criteria set out in Spijkers“are decisive criteria for establishing the existence of a transfer”. In that decision the Court summarised the application of the relevant criteria as an examination of,

“…the type of undertaking or business in question, the transfer or otherwise of tangible assets such as buildings and stocks, the value of intangible assets at the date of transfer, whether the majority of the staff are taken over by the new employer, the transfer or otherwise of the circle of customers and the degree of similarity between activities before and after the transfer, and the duration of any interruption in those activities.”

In the matter of Ayes Suzen v Zehnacker Gebaudereinigung GmbH Krankenhausservices (1997) the CJEU considered a transfer arising from the loss of a contract by one organisation and the subsequent taking up of the contract by a second body (or a “second generation transfer”). Here the CJEU held that,

“The directive is to be interpreted as meaning that the directive does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their numbers and skills, assigned by his predecessor to the performance of the contract”.

In Overpass Ltd, cited above, the Labour Court summarised this position as follows,

“In the judgment, the ECJ drew a distinction between businesses that are asset-reliant, on the one hand, and those that are labour-intensive, on the other. It found that in certain sectors in which the business is based essentially on the workforce, as in the present case, there can be a transfer within the meaning of the Directive where the group continues to exist after the taking over of an essential part of the workforce by the new awardee of the contract.”

In the matter of Cannon v Noonan Cleaning Company Ltd and CPS Cleaning Services Limited [1998 9 ELR 153] the Employment Appeals Tribunal considered the application of such a second-generation transfer. Herd the Tribunal held that,

“The Tribunal must consider all the factors characterising the undertaking in question. The nature of this undertaking is that of cleaning. The equipment used by Noonans was not transferred to the new contractor. The same premises had to be cleaned by both contractors and each were under the control of the Department of Justice. The staff did not transfer when the contract was withdrawn and given to the new contractor. There was no goodwill as such to be transferred. The undertaking could be said to have retained its identity. While there was no apparent transfer of tangible assets however it could be said that there was a transfer of intangible assets, i.e. the likely profit to be made from the contract. This must have existed, otherwise why was there competition for the contract?… Also the possible transfer of the intangible profit margin is not of sufficient significance of itself to be a major factor in the transfer. It follows then that this transfer is not caught by the directive as it does not constitute a transfer of undertaking.”

In the present case, it is apparent that the services provided by the Respondent were subsumed into the general operations provided by the alleged transferee. In this regard, the transfer cannot be referred to as a second generation transfer but is more accurately described as the insourcing of services by the alleged transferee. In the matter Department of Social Protection -b- Mary Dunne [2017] 28 ELR 295, the Labour Court held that such insourcing does not necessarily preclude the existence of a transfer and the Suzen principles cited above must be applied to determine the existence or otherwise of a transfer of undertakings.

Regarding the present case, the parties agreed that the Respondent did not own any of the assets necessary to provide the relevant service. In this regard, these assets were previously owned by the receiver appointed to the shopping centre, and then became the property of the alleged transferee on the date on which they purchased the premises. Thereafter, during the short contract between the alleged transferee and the Respondent, a transfer of the use of these assets occurred between the Respondent and the alleged transferee on 1st September 2021.

Regarding the staffing of the service, both the Respondent and the Complainant agreed that the site was staffed by three individuals. Again, it was agreed that these individuals spend the vast majority of their time assigned to this one site, with the Complainant being in receipt of set hours for an extended period of time. Following the insourcing of the contract, it is apparent that two of these three persons continued in this employment and remained assigned to the car-park area. The evidence of the alleged transferee is that these persons continued in the same role and with no real alteration to their working environment, albeit it with some later amendment to working hours and conditions. In this regard, it can be seen that 66% of the working force was retained following the loss of the contract. This can only be described as the “majority” and a “significant portion” of the workforce assigned to the site.

Notwithstanding the foregoing, it is apparent that the two remaining employees became employees of an operation with an entirely different management and reporting structure to their former employers. In this regard, following the loss to the contract, the two remaining employees reported to and were managed directly by the managing director of the alleged transferee.

Having regard to the totality of the evidence presented, it is apparent that the factual matrix examined by the Labour Court in the matter of Euro Car Parks Limited -v- Dermot Kelly TUD1810 bears a striking resemblance in this regard. In that matter, a third-party operator lost a contract for the provision of car parking services when a client elected insource the service. In finding that a transfer of undertaking occurred, the Court held that,

“…both operators provide a service (i.e. operating the service of providing carparking facilities to the paying public) utilising that same substantial and fixed essential asset (i.e. the carpark building, ticket payment machines, barriers etc). It happens to be the case that the current operator of the carparking facility is also the legal owner of the facility but, in the Court’s view, nothing of any significance turns on that fact. The current operator and owner of the facility could, at any time in the future, reverse the decision to insource the operation of the carpark.”

In summary, it apparent that a fixed, stable cohort of employees were assigned to the car park by the Respondent. Thereafter, two of these three employees continued to provide these services without any material alteration to their terms and condition or the method of working. It is further apparent that there was no interruption at all in the service, with these two employees presenting for work as normal on the date that the Respondent lost the contract. In addition to the same, it is apparent that the use of the fixed assets necessary for the provision of the service remained entirely consistent both prior to and following the loss of the contract.

In evidence, the Managing Director gave evidence regarding an apparent misrepresentation by an employee of the Respondent during the period covered by the short-term contract between the parties. While it is apparent that the Managing Director was led to believe that the Complainant had been dismissed, the position of the Respondent was corrected some time prior to the proposed transfer and it is common case that the Complainant was an employee of the Respondent on the date the contract to provide car parking service changed.

Having regard to the accumulation of foregoing points, I find that a transfer of undertaking occurred between the Respondent and the transferee on 1st September 2021, and as a consequence of the same, the liability for the dismissal of the Complainant lies with the transferee.

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.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

CA-00046303-001 – Complaint under the the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

This matter was not pursued at the hearing and as such is deemed to be not well-founded.

CA-00046303-002 – Complaint under the Industrial Relations Act, 1946

This matter was not pursued at the hearings and as such is deemed to be not well founded.

CA-00046303-003 – Complaint under the Unfair Dismissals Acts

In circumstances whereby the Complainant’s employment had transferred to another entity on the date of his dismissal, I find that the Complainant was not unfairly dismissed by the Respondent. Having regard to the same, I find that the complaint is not well founded.

CA-00046303-004 – Complaint under the Safety, Health and Welfare at Work Act 2005

In evidence, the Complainant outlined numerous health and safety issues that he reported to the Respondent prior to his transfer. Notwithstanding the same, the Complainant failed to outline any occurrence of penalisation that may have occurred as a result of the same.

Having regard to the foregoing, I find that the complaint is not well-founded.

CA-00046303-005 – Complaint under the Redundancy Payments Acts

In circumstances whereby the Complainant’s employment transferred to another entity it was agreed he is not entitled to a statutory redundancy payment.

Having regard to the foregoing the Complainant’s appeal fails and the complaint is not well-founded.

CA-00046303-006 – Complaint under the Minimum Notice & Terms of Employment Act, 1973

In circumstances whereby the Complainant’s employment transferred to another entity it was agreed he is not entitled to a statutory notice payment.

Having regard to the complaint is not well-founded.

CA-00046303-007 – Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)