Complainant

Respondent

Parties

Robert  Goryl

Ace Autobody Ltd.

Representatives

 Joseph Bolger, ESA Associated

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059422-001

16/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059422-003

16/10/2023

The background to the complaints is a transfer of undertakings from Westley Motors to Ace Autobody (the respondent in this complaint).

This is a complaint that the transferor, failed to ensure the transfer of the complainant conditions in the course of a transfer of undertakings.

On January 25, 2023, the complainant received a contract from Ace Autobody Ltd. while still an employee of Westley Motors Ltd. The contract contained variations from his previous terms of employment from Westley Motors Ltd.

For example, there was reference to a trial period (6 months with the possibility of extension) even though his employment with Westley Motors Ltd had been continuous since September 17th, 2007, the introduction of a probationary period and reference to a possible change of work location

It also introduced a liability to perform different work and to agree to accept the company's provisions regarding him and other employees without prior consultation .

There was a requirement to maintain equipment, something he was not trained to do and had never been his responsibility. Any incorrect assessment of the technical condition of devices, installations and machines will result in disciplinary proceedings.

There was a requirement to  undergo the Garda Vetting procedure, and a change in his working week from thirty-nine to forty two hours, and that this could be extended beyond thirty-two.

The transferee introduced a right to make deductions from earnings resulting from negligence without a written explanation of the nature of the negligence and finally there was a new confidentiality clause.

Working at Westley Motors (the transferor) since September 17, 2007, his working conditions, conduct, and performance have never been regulated by a contract or an employee handbook.

He was bound by general employment rules and rules of conduct in the company. By giving him the contract on January 25th, 2023, Ace Auto body changed the terms of his employment

After receiving the contract, he informed the respondent that he did not accept this contract and that it changed the form and scope of his employment policies. Despite numerous inquiries by letter, Ace Autobody Ltd did not inform him whether it took over all employment obligationsarisingfromhisfifteen yearperiodofemployment atWestleyMotorsLtd.

His contract defined him as a new employee, so he was afraid that by signing this contract he would lose all his rights arising from 15 years of employment, and he considered that contacting the company with inquiries would be insufficient.

The complainant gave evidence on oath.

In respect of the delay in making the complaint he stated that he provided detail on his medical complaints which he said restricted his movements, and that one of the conditions from which he suffered was resolved only in September when he had surgery for a hernia condition.

He said the correspondence with the company continued up to April 18th.

Respondent Preliminary Issue

The Complainant’s claim is listed under Regulation 10 of the European Commission Regulation of the (Protection of employee on Transfer of undertaken) regulations 2003 (SI 131 of 2003).

Under Section 10 of the Protection of Employees (Transfer of Undertakings) Act 2003 an employee must lodge a complaint regarding an alleged contravention of the Act within six months of the contravention occurring, which period may be extended to up to twelve months if the complainant can demonstrate that there were reasonable grounds preventing

The complainant was informed on January 17th, 2023, by his employer, Westley Motors Bluebell (“the transferor”) by letter of the transfer and also on January 25th, 2023, by Ace Auto Body (“the transferee”) by letter, of the transfer.

The respondent refers to the complainant’s submission lodged on October 19th, 2023, the transfer occurred on January 24th, some ten months earlier.

Furthermore, the respondent refers to the Complainant’s letter dated February 20th, 2023 in which he advises that he is submitting a complaint to the WRC, thus demonstrating that he and his advocate were aware of the process at that date.

The Act states

10. (6) A Rights Commissioner shall not entertain a complaint under this Regulation unless it is presented to the Commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the Rights Commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the Rights Commissioner considers reasonable.

The established test for deciding if an extension should be granted for ‘reasonable cause’ shown is that formulated in the Labour Court Determination Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, where the Court considered “reasonable cause” 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.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

“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 Complainant would have 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.

Interpreting the term “considers reasonable”, the respondent did not receive nor was it ever purported that any written contracts existed between the complainant and the Transferor. The Complainant had full disclosure of the terms and was in the full knowledge that there were no previous written contracts.

The complainant tried as did his advocate to reject the change in his reported taxable income from €34,788.00 to €39,988.00 and he was provided with comprehensive explanations to his questions.

The complainant was asked not to resign several times.

The respondent says that the reasons the complainant and some others where objecting to the Ace contract was, they were not happy with the company’s stand on cash payments. The respondent complied with sections 4, 7, 8 inclusive, during the periods of January 17th to 25th 2023.

On February 20th, 2023, the employees affected were invited to a meeting at which the respondent gave over the employee contracts and staff handbook (pursuant to s3 of the Terms of Employment (Information) Act 1994 and opened up to the floor to all present to discuss the transfer and offer the right of representation pursuant to the matter.

It is submitted that the employee engaged in the process and was duly provided time to reflect on the documents and revert within 7 days with any issues of concerns and that, for weeks after the delivery of the relevant documents, the management engaged with all the employees.

Furthermore, contrary to the assertion of the complainant the majority of employees signed the Ace contract.

Finally the complainant threatened the respondent with a referral to the WRC on February 6th so he was well aware of his rights to do so at that stage and did nothing until the following October.

There are two complaints: one arising under the Transfer of Undertakings Protection of Employment Regulations and the second, a complaint of constructive unfair dismissal.

There is a preliminary issue to be determined related to whether the complaint was made within the time limits.

The complaint was received on October 10th, 2023. Accordingly, the cognisable period (subject to consideration of any extension) runs initially from April 11th, 2023.

The date of the transfer for the purposes of the claim under the TUPE  was February 20th, 2023.

The complainant states that he gave eight weeks’ notice of the termination of his employment which would bring the date of his termination to April 18th, 2023.

Turning to this first, the complainant’s last day at work was March 6th when he went on sick leave but, according to the respondent he remained in employment only until March 17th, which was the date of his last payment of wages and the relevant pay slip was submitted in evidence.

In fact, there was no contractual or other obligation on the complainant to give eight weeks’ notice and accordingly I find that his employment terminated on March 17th, 2023. This puts it just over three weeks outside the cognisable period.

Evidence was heard from the complainant on his medical condition, to which he attributed the delay in making the complaint. Suffice to say that he offered no persuasive explanation which would have prevented him from making a complaint within the specified time limits.

While the condition he described gave rise to a degree of inconvenience and discomfort, it was not debilitating to the point where it would have prevented him from making a complaint

I note also that he had some degree of professional support (from his wife) throughout the process in his engagement with the respondent.

The respondent has set out ‘Explain and Excuse’ test from the Cementation Skanska and Salesforce.com cases above so I will not repeat it here,  but the principles in that are very clear and the complainant has failed to meet the requirements of the test by some distance.

In the TUPE case, even allowing for some delay in the crystallization of the dispute over his conditions of employment following the various notifications (the merits of which it is not necessary to review),   he resigned on February 20th and his employment terminated on March 17th and this is the latest date from which the cognisable period may be said to run.

Likewise the complaint of constructive dismissal although it is noteworthy that the complainant resigned less than a week after the key communication from the respondent, in the course of which the complainant made no use of internal grievance mechanisms to resolve his complaint..

This places both complaints outside the cognisable period and they are therefore not within jurisdiction.

For the reasons set out above complaints CA-00059422-001 and 003 are not well-founded

Time limits