ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045572
Parties:
| Complainant | Respondent |
Parties | Jolanta Olszowska | Tesco Ireland Ltd |
Representatives |
| Aisling McDevitt IBEC |
Complaints:
Act | Complaint/Dispute 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-00056347-001 | 27/04/2023 |
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-00056347-002 | 27/04/2023 |
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-00056347-003 | 27/04/2023 |
Date of Adjudication Hearing: 28/08/2023, 29/01/2024
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. A request was raised for the issuing of an anonymised decision and this has been addressed in the decision. Where submissions were received, they were exchanged.
The complainant gave evidence under affirmation and the interpreter took an affirmation and Mr Stephen Corrigan, Store Manager and Martina Gormley People Manager gave evidence for the respondent under affirmation.
Background:
The complainant submits that the respondent, her new/current employer (Transferee), did not transfer terms and conditions from her previous employment, did not observe her terms and conditions and did not inform employee representatives of certain details of the transfer. |
Summary of Complainant’s Case: CA-00056347-001
Preliminary Issue #1: The complainant submitted that the details of the complainant’s health condition should be anonymised. Substantive Issue #2 The complainant submitted in response to the preliminary issue as to whether the complaint was out of time that she only received the contract 15/11/2022. She gave evidence that she had been unwell prior to the transfer of undertakings, that she remains unwell and is out on certified sick leave and that her complaints were received by the WRC on 27/04/2023. Substantive Issue: The complainant submits that her current employer did not ensure that the terms and conditions were transferred from her previous employer. It was submitted that she was given a new contract after the transfer of business from the previous employer. Her evidence was that her previous contract with the transferor was for 40 hours but the new contract from the respondent stated 30-35 hours and that a probationary period was also given which she also disputed as she had worked for the old employer for 16 years.
The complainant in her evidence said she had been on sick leave since January 2022 and went abroad to seek further treatment in August 2022 and had been in touch with the previous employer and provided sick certs. She had a phone call with the respondent in August 2022 and advised the respondent of her hours normally worked. On 15/11/2022 she received an email from the respondent and had a welfare meeting once a month with Stephen Corrigan and was furnished with a contract in November 2022 that was different to her previous contract and she could not sign it as it mentioned she would have to complete a probationary period and that her hours would be reduced despite having worked 16 years with the organisation. She said in evidence that she accepted that the matter regarding probationary period had been resolved. She said she had been told by Mr Corrigan that he would check out about the hours for her contract and then told her on 25/04/2023 that it would be discussed when the complainant returned to work as she remained on sick leave. She said she worked normally 7am till 2pm Monday to Friday and then 7am till 1 pm on Sunday.
Under cross examination the complainant said she gave her new address to the previous employer in June 2022 and that there was a meeting with the respondent at a hotel in July 2022. She confirmed that what was on the system showed 32 hours but said she had a different verbal agreement with the former owner and that she gave this information to the respondent’s rep at the meeting. She said when she got the contract in November 2022 she did not raise the matter of the hours at that point. The complainant said that she moved house on 12/08/2022 and gave her new address to the transferor in June 2022 and it appeared the respondent had sent information to the wrong address and that she did not receive documents from the respondent and did not receive the contract until November 2022 and did not question it at the time as she was unwell. The complainant said she had asked for documents to be sent by email. There was a meeting at a hotel and the hours detailed in her document says one thing but there was a different verbal agreement with the previous owner as she would work Sundays and get days off in lieu of it. She confirmed that she did ask Stephen Corrigan about the contract in January and confirmed that Stephen Corrigan said he would look into this issue. She confirmed that she was due to return to work and that she had been in touch with Mr Corrigan. She said that if she needed a free day she would take it in lieu of the hours worked on Sunday and that the pay slips reflected the Sundays she worked.
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Summary of Respondent’s Case: CA-00056347-001
Preliminary Issue #1: The respondent submitted that they wished for the decision to be anonymised. In the absence of the decision being anonymised, the respondent submitted that they did not object to anonymising the complainant’s medical condition. Preliminary Issue #2: It was submitted that the complaint is out of time as the complainant submitted the complaint on 27/04/2023 and the transfer had occurred 14/08/2022. The complainant was issued with a contract of employment in August 2022 outlining her hours would be 30-35 hours per week in August 2022 and therefore her claim is lodged well outside the time limits set. It was submitted that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the 6-month period, unless reasonable cause for the delay can be established and the complainant has failed to establish reasonable cause. Case law cited included Cementation Skanska v Carroll, DWT0338, O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301. Department of Finance v IMPACT ([2005] 16 ELR 6, Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC 145, Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC 145, Omniplex (Cork) Limited vs Joseph Callaghan (UDD239), Tesco Ireland Ltd v Ali Raza Khan (UDD19655, Dangan Group v Gheorghe Daniel Marcu (TUD231S) Substantive Issue: It was submitted that the respondent is aware of the protections and obligations afforded under transfer of undertaking regulations and fully intend to honour them. The complaint CA-00056347-001 and complaint CA-00056347-002 are identical and the respondent has always operated on the basis that the complainant worked 32/33 hours. The respondent did everything they could to ascertain how many hours the complainant worked and when the information came to light following the second day of the hearing, it was rectified as early as possible.
The respondent submitted that the complainant commenced employment with the Transferor on 28/02/2008 as a Customer Assistant and her employment transferred to the respondent on 14/08/2022. In May 2022 the respondent received employee information for the complainant but there was no contract on file for the complainant and the payroll records indicated that prior to going on sick the complainant worked an average of 33 hours per week and therefore the respondent issued a contract for 30-35 hours per week. On 03/08/2022 a meeting was held with the complainant and a manager for the respondent, to go through the relevant details as employees transferring had the option to transfer over to all the respondent’s terms and conditions which was an enhanced package, or to remain on their terms and conditions held with the previous employer. The complainant outlined she worked from 7am to 2pm, Monday to Friday and that she had a 40 hour contract. Based on the due diligence carried out it appeared her hours were approximately 32.5 hours per week, once rest breaks were taken into account. The complainant contacted the respondent on 12/09/2022 to confirm contact details and a welfare call was arranged in line with the Respondent’s normal absence management procedures and further welfare meetings took place. The complainant advised the respondent that she had queries regarding the contract hours referred to in the contract and further enquiries were made.
It was submitted that the respondent acted in compliance with the Regulations at all times and that the respondent had made enquiries regarding the complainant’s claim regarding contract hours but nothing was there to support the complainant’s claim. It had been accepted that no issues arose regarding probation. The complainant had failed to submit her claim in a timely manner and the respondent acted appropriately at all times.
At the second day of the hearing held 29/01/2024, the respondent advised that they had received communication on 05/10/2023 from the previous owner Mr A that while contradicting what he had indicated previously, did confirm that: “From memory, Jolanta worked 39 hours per week and was paid 32/33hours. She “banked” the other hours towards annual leave”.
It was submitted that the respondent had made contact with the complainant advising that she had a choice to make on her previous “terms and conditions should you wish to do so. Please confirm to me which is your preferable option” and that the complainant had chosen to remain on her previous terms and conditions and therefore, the matter of her working hours was resolved.
The evidence of Ms Gormley was that she was part of a transfer team with the respondent and there were 10 stores in total engaging in a transfer of undertaking and the process involved was reviewing information provided in a time line and create documents and that they received a document saying the complainant worked 32 hours and it was verified with Mr A and there was no other information received. She said there was a town hall meeting as they wanted to reassure employees that there were jobs for everybody previously employed and she wanted to assure the employees that their contracts would be honoured if they wanted and also to show them what the new contracts were. She confirmed that the complainant was at the Townhall meeting where matters regarding the transfer of undertakings was discussed. She said the majority of employees wished to move to the respondent’s contracts. As a result of the new contracts, some employees wanted to reduce their hours because of the new rate of pay and there was full collaboration. She said there were 1:1 meetings with employees and the same check list was used for all employees and the complainant did not raise any concern. There was no contract on file for the complainant and nothing that alerted the witness to her working 40 hours and therefore based on payroll and a statement from Mr A the previous owner and the absence of a contract there was nothing that pointed to 40 hours. Under cross examination Ms Gormley confirmed that a letter was sent to an address they had on file for the complainant and they had no reason to believe this was not the correct address for the complainant.
The evidence of Stephen Corrigan was that he is store manager for over 25 years and said that support was given to the complainant when she went out sick and there was a welfare meeting on 19/1/2023 when she highlighted she worked 40 hours. This was checked with the previous store owner Mr A and he said she only worked 32-33 hours per week and that there was no contract to go by. The complainant provided him with a different address then what had been used and he updated the records and he did not know if he had enquired with her if there had been information that she had not received owing to being sent to a different address. He received the complainant’s older contract eventually and it said full time pro rata. He said he talked to some employees whose recollection was that the complainant worked 32/33 hours and that he told the complainant he would be happy to discuss this with her when she returned to work and he expected her back on 31/08/2023. His evidence was that an employee did tell him that sometimes hours that were banked were recorded in a book but he could not locate this book. There was no cross examination of Mr Corrigan. |
Findings and Conclusions: CA-00056347-001
Preliminary Issue: #1 The respondent sought that the hearing be heard in private and the decision anonymised and the complainant requested that the nature of her health issues be anonymised. WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.
As set out on the WRC website and outlined to the parties, ‘Special circumstances’ may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc.
Having considered all the submissions I consider the complainant’s medical condition as special circumstances and advised parties that the details of the complainant’s medical condition would be anonymised and that parties would be named. Preliminary Issue #2: The respondent submitted that the transfer of undertakings took place on 14/08/2022, that the complainant was issued a contract in August 2022, that the complaint was not received by the WRC until 27/04/2023 and that the complaint is, therefore, out of time. The complainant submits that she advised the respondent in August 2022 that her contractual hours were 40 and that she only became aware of the changes in her contract reducing her hours when she received the contract approximately 15/11/2022 and had always communicated her contractual hours as 40. She said that the address that the respondent may have issued the contract to was incorrect and she did not receive the contract earlier than approximately 15/11/2022.
Subsections 6 and 8 of Section 41 of the Act of 2015 sets out: “(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. … (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
Regulation 10 of the Regulations sets out: “(5) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely: (a) declare that the complaint is or, as the case may be, is not well founded, (b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable in the circumstances, but - (i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and, (ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration, in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977.”
Regulation 10 requires complaints to be referred to the WRC within six months of the date of contravention. A contravention could arise on the date of transfer or on some later date. The six-month limitation period begins from the date the alleged contravention takes place. Having heard the credible evidence of the complainant, reviewed the exchange of correspondence between the parties, noting the address correspondence was sent to was incorrect and the exchange of correspondence between the parties from November 2022 it would appear that the alleged contravention was approximately 15/11/2022 and as the complaint was received on 27/04/2023, I find the instant complaint within time.
Substantive Issue: The complainant submits that her current employer did not ensure that the terms and conditions of her contract were transferred from her previous employer. The respondent at the first day of the hearing submitted that the information that they had was that the complainant worked on average 33 hours and therefore they provided her with a contract for 30-35 hours. At the second day of the hearing the respondent submitted that they had received additional information and that they now accepted that the complainant’s contract should reflect 40 hours. It was accepted that a transfer of undertakings within the meaning of the Regulations took place.
Under the regulations: 4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.
I note the complainant’s evidence was that she advised the respondent at the meeting in August 2022 that her normal weekly hours were 40 hours which is supported in the notes from that meeting and she was consistent in her submissions throughout that her hours normally worked were 40 and not 33. The evidence of Mr Crowley for the respondent was that he enquired with the former owner Mr A who advised initially that the complainant worked 33 hours but later supported the complainant’s purported hours. Taking into consideration all of the evidence and the submissions, it does not appear that the respondent made sufficient enquiries where there was a conflict between the respondent’s initial investigation and the complainant’s claims. I note that the respondent did not appear to enquire sufficiently into rosters where the complainant’s claim regarding banking hours might have resolved matters or review pay slips where Sunday working was reflected. TUD167Petrogas Group Ltd vEdgarusPaulauskas outlines it is necessary to consider breaches having regard to “all of the circumstances” of the case including I find in this instant case the unnecessary anxiety created for the complainant.
Taking into consideration all the evidence and submissions and the impact on the complainant I find that the complaint is well founded, and I award the complainant €2,000 which I find is just and equitable in all the circumstances.
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Summary of Complainant’s Case: CA-00056347-002
Preliminary Issue #1: It was submitted that the details of the complainant’s health condition should be anonymised. Substantive Issue #2 The complainant submitted in response to the preliminary issue as to whether the complaint was out of time that she only received the contract 15/11/2022. She gave evidence that she had been unwell prior to the transfer of undertakings, that she remains unwell and is out on certified sick leave and that her complaints were received by the WRC on 27/04/2023. Substantive Issue: The complainant submits that her current employer did not observe the terms and conditions transferred from her previous employer. It was submitted that she was given a new contract after the transfer of business from the previous employer. Her evidence was that her previous contract with the transferor was for 40 hours but the new contract from the respondent stated 30-35 hours and that a probationary period was also given which she also disputed as she had worked for the old employer for 16 years.
The complainant in her evidence said she had been on sick leave since January 2022 and went abroad to seek further treatment in August 2022 and had been in touch with the previous employer and provided sick certs. She had a phone call with the respondent in August 2022 and advised the respondent of her hours normally worked. On 15/11/2022 she received an email from the respondent and had a welfare meeting once a month with Stephen Corrigan and was furnished with a contract in November 2022 that was different to her previous contract and she could not sign it as it mentioned she would have to complete a probationary period and that her hours would be reduced despite having worked 16 years with the organisation. She said in evidence that she accepted that the matter regarding probationary period had been resolved. She said she had been told by Mr Corrigan that he would check out about the hours for her contract and then told her on 25/04/2023 that it would be discussed when the complainant returned to work as she remained on sick leave. She said she worked normally 7am till 2pm Monday to Friday and then 7am till 1 pm on Sunday.
Under cross examination the complainant said she gave her new address to the previous employer in June 2022 and that there was a meeting with the respondent at a hotel in July 2022. She confirmed that what was on the system showed 32 hours but said she had a different verbal agreement with the former owner and that she gave this information to the respondent’s rep at the meeting. She said when she got the contract in November 2022 she did not raise the matter of the hours at that point. The complainant said that she moved house on 12/08/2022 and gave her new address to the transferor in June 2022 and it appeared the respondent had sent information to the wrong address and that she did not receive documents from the respondent and did not receive the contract until November 2022 and did not question it at the time as she was unwell. The complainant said she had asked for documents to be sent by email. There was a meeting at a hotel and the hours detailed in her document says one thing but there was a different verbal agreement with the previous owner as she would work Sundays and get days off in lieu of it. She confirmed that she did ask Stephen Corrigan about the contract in January and confirmed that Stephen Corrigan said he would look into this issue. She confirmed that she was due to return to work and that she had been in touch with Mr Corrigan. She said that if she needed a free day she would take it in lieu of the hours worked on Sunday and that the pay slips reflected the Sundays she worked.
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Summary of Respondent’s Case: CA-00056347-002
Preliminary Issue #1: The respondent submitted that they wished for the decision to be anonymised. In the absence of the decision being anonymised, the respondent submitted that they did not object to anonymising the complainant’s medical condition. Preliminary Issue #2: It was submitted that the complaint is out of time as the complainant submitted the complaint on 27/04/2023 and the transfer had occurred 14/08/2022. The complainant was issued with a contract of employment in August 2022 outlining her hours would be 30-35 hours per week in August 2022 and therefore her claim is lodged well outside the time limits set. It was submitted that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the 6-month period, unless reasonable cause for the delay can be established and the complainant has failed to establish reasonable cause. Case law cited included Cementation Skanska v Carroll, DWT0338, O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301. Department of Finance v IMPACT ([2005] 16 ELR 6, Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC 145, Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC 145, Omniplex (Cork) Limited vs Joseph Callaghan (UDD239), Tesco Ireland Ltd v Ali Raza Khan (UDD19655, Dangan Group v Gheorghe Daniel Marcu (TUD231S) Substantive Issue: It was submitted that the respondent is aware of the protections and obligations afforded under transfer of undertaking regulations and fully intend to honour them. The complaint CA-00056347-001 and complaint CA-00056347-002 are identical and the respondent has always operated on the basis that the complainant worked 32/33 hours. The respondent did everything they could to ascertain how many hours the complainant worked and when the information came to light following the second day of the hearing, it was rectified as early as possible.
The respondent submitted that the complainant commenced employment with the Transferor on 28/02/2008 as a Customer Assistant and her employment transferred to the respondent on 14/08/2022. In May 2022 the respondent received employee information for the complainant but there was no contract on file for the complainant and the payroll records indicated that prior to going on sick the complainant worked an average of 33 hours per week and therefore the respondent issued a contract for 30-35 hours per week. On 03/08/2022 a meeting was held with the complainant and a manager for the respondent, to go through the relevant details as employees transferring had the option to transfer over to all the respondent’s terms and conditions which was an enhanced package, or to remain on their terms and conditions held with the previous employer. The complainant outlined she worked from 7am to 2pm, Monday to Friday and that she had a 40 hour contract. Based on the due diligence carried out it appeared her hours were approximately 32.5 hours per week, once rest breaks were taken into account. The complainant contacted the respondent on 12/09/2022 to confirm contact details and a welfare call was arranged in line with the Respondent’s normal absence management procedures and further welfare meetings took place. The complainant advised the respondent that she had queries regarding the contract hours referred to in the contract and further enquiries were made.
It was submitted that the respondent acted in compliance with the Regulations at all times and that the respondent had made enquiries regarding the complainant’s claim regarding contract hours but nothing was there to support the complainant’s claim. It had been accepted that no issues arose regarding probation. The complainant had failed to submit her claim in a timely manner and the respondent acted appropriately at all times.
At the second day of the hearing held 29/01/2024, the respondent advised that they had received communication on 05/10/2023 from the previous owner Mr A that while contradicting what he had indicated previously, did confirm that: “From memory, Jolanta worked 39 hours per week and was paid 32/33hours. She “banked” the other hours towards annual leave”.
It was submitted that the respondent had made contact with the complainant advising that she had a choice to make on her previous “terms and conditions should you wish to do so. Please confirm to me which is your preferable option” and that the complainant had chosen to remain on her previous terms and conditions and therefore, the matter of her working hours was resolved.
The evidence of Ms Gormley was that she was part of a transfer team with the respondent and there were 10 stores in total engaging in a transfer of undertaking and the process involved was reviewing information provided in a time line and create documents and that they received a document saying the complainant worked 32 hours and it was verified with Mr A and there was no other information received. She said there was a town hall meeting as they wanted to reassure employees that there were jobs for everybody previously employed and she wanted to assure the employees that their contracts would be honoured if they wanted and also to show them what the new contracts were. She confirmed that the complainant was at the Townhall meeting where matters regarding the transfer of undertakings was discussed. She said the majority of employees wished to move to the respondent’s contracts. As a result of the new contracts, some employees wanted to reduce their hours because of the new rate of pay and there was full collaboration. She said there were 1:1 meetings with employees and the same check list was used for all employees and the complainant did not raise any concern. There was no contract on file for the complainant and nothing that alerted the witness to her working 40 hours and therefore based on payroll and a statement from Mr A the previous owner and the absence of a contract there was nothing that pointed to 40 hours. Under cross examination Ms Gormley confirmed that a letter was sent to an address they had on file for the complainant and they had no reason to believe this was not the correct address for the complainant.
The evidence of Stephen Corrigan was that he is store manager for over 25 years and said that support was given to the complainant when she went out sick and there was a welfare meeting on 19/1/2023 when she highlighted she worked 40 hours. This was checked with the previous store owner Mr A and he said she only worked 32-33 hours per week and that there was no contract to go by. The complainant provided him with a different address then what had been used and he updated the records and he did not know if he had enquired with her if there had been information that she had not received owing to being sent to a different address. He received the complainant’s older contract eventually and it said full time pro rata. He said he talked to some employees whose recollection was that the complainant worked 32/33 hours and that he told the complainant he would be happy to discuss this with her when she returned to work and he expected her back on 31/08/2023. His evidence was that an employee did tell him that sometimes hours that were banked were recorded in a book but he could not locate this book. There was no cross examination of Mr Corrigan. |
Findings and Conclusions: CA-00056347-002
Preliminary Issue: #1 The respondent sought that the hearing be heard in private and the decision anonymised and the complainant requested that the nature of her health issues be anonymised. WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.
As set out on the WRC website and outlined to the parties, ‘Special circumstances’ may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc.
Having considered all the submissions I consider the complainant’s medical condition as special circumstances and advised parties that the details of the complainant’s medical condition would be anonymised and that parties would be named. Preliminary Issue #2: The respondent submitted that the transfer of undertakings took place on 14/08/2022, that the complainant was issued a contract in August 2022, that the complaint was not received by the WRC until 27/04/2023 and that the complaint is, therefore, out of time. The complainant submits that she advised the respondent in August 2022 that her contractual hours were 40 and that she only became aware of the changes in her contract reducing her hours when she received the contract approximately 15/11/2022 and had always communicated her contractual hours as 40. She said that the address that the respondent may have issued the contract to was incorrect and she did not receive the contract earlier than approximately 15/11/2022.
Subsections 6 and 8 of Section 41 of the Act of 2015 sets out: “(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. … (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
Regulation 10 of the Regulations sets out: “(5) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely: (a) declare that the complaint is or, as the case may be, is not well founded, (b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable in the circumstances, but - (i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and, (ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration, in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977.”
Regulation 10 requires complaints to be referred to the WRC within six months of the date of contravention. A contravention could arise on the date of transfer or on some later date. The six-month limitation period begins from the date the alleged contravention takes place. Having heard the credible evidence of the complainant, reviewed the exchange of correspondence between the parties, noting the address correspondence was sent to was incorrect and the exchange of correspondence between the parties from November 2022 it would appear that the alleged contravention was approximately 15/11/2022 and as the complaint was received on 27/04/2023, I find the instant complaint within time.
Substantive Issue: The complainant submits that her current employer did not observe the terms and conditions of her contract and the respondent submits that this complaint is identical to her previous complaint CA0005634-001. It was accepted that a transfer of undertakings within the meaning of the Regulations took place.
4(2) of the regulations under which this complaint was referred outlines that Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.
The complainant pointed to failures by the respondent with regard to her terms and conditions of her contract which has been addressed in CA-00056347-001, however, she has failed to adduce sufficient evidence or submissions to support the claim that the respondent failed to observe terms and conditions agreed in any collective agreement as provided for under 4(2) of the regulation and I find therefore that the complaint is not well founded and I dismiss the complaint. |
Summary of Complainant’s Case: CA-00056347-003
Preliminary Issue #1: It was submitted that the details of the complainant’s health condition should be anonymised. Substantive Issue #2 The complainant submitted in response to the preliminary issue as to whether the complaint was out of time that she only received the contract 15/11/2022. She gave evidence that she had been unwell prior to the transfer of undertakings, that she remains unwell and is out on certified sick leave and that her complaints were received by the WRC on 27/04/2023.
Substantive Issue: The complainant submitted that her new/current employer (Transferee) did not inform employee representatives of certain details of the transfer. It was submitted that she was given a new contract after the transfer of business from the previous employer. Her evidence was that her previous contract with the transferor was for 40 hours but the new contract from the respondent stated 30-35 hours and that a probationary period was also given which she also disputed as she had worked for the old employer for 16 years.
The complainant in her evidence said she had been on sick leave since January 2022 and went abroad to seek further treatment in August 2022 and had been in touch with the previous employer and provided sick certs. She had a phone call with the respondent in August 2022 and advised the respondent of her hours normally worked. On 15/11/2022 she received an email from the respondent and had a welfare meeting once a month with Stephen Corrigan and was furnished with a contract in November 2022 that was different to her previous contract and she could not sign it as it mentioned she would have to complete a probationary period and that her hours would be reduced despite having worked 16 years with the organisation. She said in evidence that she accepted that the matter regarding probationary period had been resolved. She said she had been told by Mr Corrigan that he would check out about the hours for her contract and then told her on 25/04/2023 that it would be discussed when the complainant returned to work as she remained on sick leave. She said she worked normally 7am till 2pm Monday to Friday and then 7am till 1 pm on Sunday.
Under cross examination the complainant said she gave her new address to the previous employer in June 2022 and that there was a meeting with the respondent at a hotel in July 2022. She confirmed that what was on the system showed 32 hours but said she had a different verbal agreement with the former owner and that she gave this information to the respondent’s rep at the meeting. She said when she got the contract in November 2022 she did not raise the matter of the hours at that point. The complainant said that she moved house on 12/08/2022 and gave her new address to the transferor in June 2022 and it appeared the respondent had sent information to the wrong address and that she did not receive documents from the respondent and did not receive the contract until November 2022 and did not question it at the time as she was unwell. The complainant said she had asked for documents to be sent by email. There was a meeting at a hotel and the hours detailed in her document says one thing but there was a different verbal agreement with the previous owner as she would work Sundays and get days off in lieu of it. She confirmed that she did ask Stephen Corrigan about the contract in January and confirmed that Stephen Corrigan said he would look into this issue. She confirmed that she was due to return to work and that she had been in touch with Mr Corrigan. She said that if she needed a free day she would take it in lieu of the hours worked on Sunday and that the pay slips reflected the Sundays she worked. . |
Summary of Respondent’s Case: CA-00056347-003
Preliminary Issue #1: The respondent submitted that they wished for the decision to be anonymised. In the absence of the decision being anonymised, the respondent submitted that they did not object to anonymising the complainant’s medical condition. Preliminary Issue #2: It was submitted that the complaint is out of time as the complainant submitted the complaint on 27/04/2023 and the transfer had occurred 14/08/2022. The complainant was issued with a contract of employment in August 2022 outlining her hours would be 30-35 hours per week in August 2022 and therefore her claim is lodged well outside the time limits set. It was submitted that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the 6-month period, unless reasonable cause for the delay can be established and the complainant has failed to establish reasonable cause. Case law cited included Cementation Skanska v Carroll, DWT0338, O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301. Department of Finance v IMPACT ([2005] 16 ELR 6, Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC 145, Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC 145, Omniplex (Cork) Limited vs Joseph Callaghan (UDD239), Tesco Ireland Ltd v Ali Raza Khan (UDD19655, Dangan Group v Gheorghe Daniel Marcu (TUD231S) Substantive Issue: It was submitted that the respondent is aware of the protections and obligations afforded under transfer of undertaking regulations and fully intend to honour them. The complaint CA-00056347-001 and complaint CA-00056347-002 are identical and the respondent has always operated on the basis that the complainant worked 32/33 hours. The respondent did everything they could to ascertain how many hours the complainant worked and when the information came to light following the second day of the hearing, it was rectified as early as possible.
The respondent submitted that the complainant commenced employment with the Transferor on 28/02/2008 as a Customer Assistant and her employment transferred to the respondent on 14/08/2022. In May 2022 the respondent received employee information for the complainant but there was no contract on file for the complainant and the payroll records indicated that prior to going on sick the complainant worked an average of 33 hours per week and therefore the respondent issued a contract for 30-35 hours per week. On 03/08/2022 a meeting was held with the complainant and a manager for the respondent, to go through the relevant details as employees transferring had the option to transfer over to all the respondent’s terms and conditions which was an enhanced package, or to remain on their terms and conditions held with the previous employer. The complainant outlined she worked from 7am to 2pm, Monday to Friday and that she had a 40 hour contract. Based on the due diligence carried out it appeared her hours were approximately 32.5 hours per week, once rest breaks were taken into account. The complainant contacted the respondent on 12/09/2022 to confirm contact details and a welfare call was arranged in line with the Respondent’s normal absence management procedures and further welfare meetings took place. The complainant advised the respondent that she had queries regarding the contract hours referred to in the contract and further enquiries were made.
It was submitted that the respondent acted in compliance with the Regulations at all times and that the respondent had made enquiries regarding the complainant’s claim regarding contract hours but nothing was there to support the complainant’s claim. It had been accepted that no issues arose regarding probation. The complainant had failed to submit her claim in a timely manner and the respondent acted appropriately at all times.
At the second day of the hearing held 29/01/2024, the respondent advised that they had received communication on 05/10/2023 from the previous owner Mr A that while contradicting what he had indicated previously, did confirm that: “From memory, Jolanta worked 39 hours per week and was paid 32/33hours. She “banked” the other hours towards annual leave”.
It was submitted that the respondent had made contact with the complainant advising that she had a choice to make on her previous “terms and conditions should you wish to do so. Please confirm to me which is your preferable option” and that the complainant had chosen to remain on her previous terms and conditions and therefore, the matter of her working hours was resolved.
The evidence of Ms Gormley was that she was part of a transfer team with the respondent and there were 10 stores in total engaging in a transfer of undertaking and the process involved was reviewing information provided in a time line and create documents and that they received a document saying the complainant worked 32 hours and it was verified with Mr A and there was no other information received. She said there was a town hall meeting as they wanted to reassure employees that there were jobs for everybody previously employed and she wanted to assure the employees that their contracts would be honoured if they wanted and also to show them what the new contracts were. She confirmed that the complainant was at the Townhall meeting where matters regarding the transfer of undertakings was discussed. She said the majority of employees wished to move to the respondent’s contracts. As a result of the new contracts, some employees wanted to reduce their hours because of the new rate of pay and there was full collaboration. She said there were 1:1 meetings with employees and the same check list was used for all employees and the complainant did not raise any concern. There was no contract on file for the complainant and nothing that alerted the witness to her working 40 hours and therefore based on payroll and a statement from Mr A the previous owner and the absence of a contract there was nothing that pointed to 40 hours. Under cross examination Ms Gormley confirmed that a letter was sent to an address they had on file for the complainant and they had no reason to believe this was not the correct address for the complainant.
The evidence of Stephen Corrigan was that he is store manager for over 25 years and said that support was given to the complainant when she went out sick and there was a welfare meeting on 19/1/2023 when she highlighted she worked 40 hours. This was checked with the previous store owner Mr A and he said she only worked 32-33 hours per week and that there was no contract to go by. The complainant provided him with a different address then what had been used and he updated the records and he did not know if he had enquired with her if there had been information that she had not received owing to being sent to a different address. He received the complainant’s older contract eventually and it said full time pro rata. He said he talked to some employees whose recollection was that the complainant worked 32/33 hours and that he told the complainant he would be happy to discuss this with her when she returned to work and he expected her back on 31/08/2023. His evidence was that an employee did tell him that sometimes hours that were banked were recorded in a book but he could not locate this book. There was no cross examination of Mr Corrigan. |
Findings and Conclusions: CA-00056347-003
Preliminary Issue: #1 The respondent sought that the hearing be heard in private and the decision anonymised and the complainant requested that the nature of her health issues be anonymised. WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.
As set out on the WRC website and outlined to the parties, ‘Special circumstances’ may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc.
Having considered all the submissions I consider the complainant’s medical condition as special circumstances and advised parties that the details of the complainant’s medical condition would be anonymised and that parties would be named. Preliminary Issue #2: The respondent submitted that the transfer of undertakings took place on 14/08/2022, that the complainant was issued a contract in August 2022, that the complaint was not received by the WRC until 27/04/2023 and that the complaint is, therefore, out of time. The complainant submits that she advised the respondent in August 2022 that her contractual hours were 40 and that she only became aware of the changes in her contract reducing her hours when she received the contract approximately 15/11/2022 and had always communicated her contractual hours as 40. She said that the address that the respondent may have issued the contract to was incorrect and she did not receive the contract earlier than approximately 15/11/2022.
Subsections 6 and 8 of Section 41 of the Act of 2015 sets out: “(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. … (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
Regulation 10 of the Regulations sets out: “(5) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely: (a) declare that the complaint is or, as the case may be, is not well founded, (b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable in the circumstances, but - (i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and, (ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration, in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977.”
Regulation 10 requires complaints to be referred to the WRC within six months of the date of contravention. A contravention could arise on the date of transfer or on some later date. The six-month limitation period begins from the date the alleged contravention takes place. Having heard the credible evidence of the complainant, reviewed the exchange of correspondence between the parties, noting the address correspondence was sent to was incorrect and the exchange of correspondence between the parties from November 2022 it would appear that the alleged contravention was approximately 15/11/2022 and as the complaint was received on 27/04/2023, I find the instant complaint within time.
Substantive Issue: The complainant submitted that her new/current employer (Transferee) did not inform employee representatives of certain details of the transfer. It was accepted that a transfer of undertakings within the meaning of the Regulations took place.
Regulation 8 provides that (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of - (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them and (d) any measures envisaged in relation to the employees. (2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. (3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. (4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement. (5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation. (6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following: (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and (d) any measures envisaged in relation to the employees. (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations. The complainant’s submissions and evidence were in the main with regard to complaint CA-00056347-001 regarding her contractual hours. The complainant failed to adduce evidence or submissions to support this instant complaint of failures to inform employee representatives of certain details of the transfer. I find, therefore that the instant complaint is not well founded and dismiss the complaint.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00056347-001 I find that the complaint is well founded, and I award the complainant €2,000 which I find is just and equitable in all the circumstances. CA-00056347-002 I find that the complaint is not well founded and I dismiss the complaint. CA-00056347-003 I find that the complaint is not well founded and I dismiss the complaint. |
Dated: 12/12/2024
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Transfer of undertakings, terms of employment, observe, |