Complainant

Respondent

Parties

Robert  Goryl

Westley Motors Ltd

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-00059422-002

16/10/2023

This is a complaint that the transferor, (the respondent in this complaint)  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 (the transferee). while still an employee of Westley Motors Ltd (the transferor and respondent in this complaint).

The contract was not in line with his previous terms of employment from Westley Motors Ltd. The differences included:

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 all 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 transferee) 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 transferee 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 obligations arising from his 15-year period of employment at Westley Motors Ltd. T

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.

The respondent did not attend the hearing.

This is a complaint under the Transfer of Undertakings Protection of Employment Regulations

There is a preliminary issue to be determined related to time limits.

The complaint was received on October 10th, 2023. Accordingly, the cognisable period (subject to consideration of any extension) runs initially form 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 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 until March 17th which was the date of his last payment of wages and the 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. 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 he 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 transferee.

The test for deciding whether 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.

This ‘Explain and Excuse’ test sets out the principles 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.

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

For the reason set out above complaint CA-00059422-002 is not well founded

Time Limits