Complainant

Respondent

Parties

Eanna  Larkin

Premier Service Station Ltd.

Representatives

Self-represented 

Charlie Clarke, HR Consultant

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-00064085-001

13/06/2024

The Complainant commenced her employment with the Respondent on 29 August 2022 as a deli worker. She worked 15 hours a week.

The Complainant referred her claim to the Director General of the WRC on 13 June 2024 pursuant to the Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003).

The Complainant, in her WRC referral form alleged that the Transferor did not advise her in relation to the transfer.

The Complainant submits that while she was abroad in May 2024, her workplace, Premier Service Station Ltd. transferred ownership without her knowledge or without having given any notice to her whatsoever.

The Complainant submits that she only found out about the shop being closed after receiving a message from a work colleague on 26 May 2024, stating that the employees at the shop that day were told not to bother coming in anymore.

The Complainant submits that she did not receive any written notice from the new owners of the business, either before or after the transfer of undertakings. The first contact she received was a group WhatsApp message around 7 June 2024 from Ms Maloney, the Head of Food Services stating that she would be the point of contact for all employees at Premier Service Station Ltd. This was the first and only information the Complainant heard about the transfer of business.

The Complainant submits that the Head of Food Services invited the employees to do some training hours at Casey’s Londis store on Dock Road, Limerick. The Complainant attended the training hours in the hope of meeting a manager or someone who could tell her what was going on. The Complainant submits that she did not receive any information at that time.

The Complainant submits that later she was invited to an ‘Introduction Day’ at the Dock Road premises. While there, she was told that the contract she had signed with her previous employers was not up to standard and the Respondent wanted new contracts to be given to the employees to sign. The new contract she received did not include anything about her work hours or her rate of pay. The Complainant submits that she was told to sign it, and the Respondent would fill those in at a later date.

Summary of direct evidence and cross-examination of the Complainant

The Complainant stated that she was on annual leave in May 2024 when she got a text from a work colleague regarding a transfer. She did not know what was going on. On 7 June 2024, the Complainant was informed by Ms Maloney that she would be the main point of contact.

The Complainant said that she attended the induction training and received her new terms of employment from which some details were missing.

The Complainant said that she was back to work on 4 June 2024 in the same role and on the same pay. She was paid in full for the period that the shop was closed for refurbishment. She worked only one day, on 15 June 2024, and attended the induction on 18 June 2024.

In cross-examination, it was put to the Complainant that a draft of her terms of employment was given to her for a review. It was anticipated that the parties would meet to discuss and review.

It was further put to the Complainant that there was no TUPE. Under TUPE, she would be required to furnish the Respondent with her banking details as the previous owners would not be allowed to share them as per the GDPR. The Complainant did not dispute that she did not have to furnish same.

The Complainant did not dispute that the employer’s name and number with the Revenue Commissioners remained the same.

The Respondent submits as follows.

BACKGROUND

The business operating as Premier Service Station located at Ennis Road is a convenience store with a deli and filling station.

The Respondent Premier Service Station Limited was owned by two named persons until 27 May 2024 when their shares in the company were purchased by Oldhal Limited (owned by Gerry Casey & family). The Respondent entity has not changed. The legal entity of the business did not change and therefore the legal employer did not change.

The changes to directors are noted with the CRO but the ownership of the shares won't show up on the CRO until the annual return for the company is filed. There are no plans to change the name of the business or to merge it with any other business .

COMPLAINANT INTERACTION SINCE 27 MAY 2024

The Complainant was on annual leave and returned to work as usual. The new shareholders immediately undertook a significant makeover of the premises and forecourt which required the business to close to the public for a period of five weeks. All employees were paid as usual in accordance with existing terms and conditions of employment. For the first week they were allowed to stay at home.

This period was utilised for some essential training and it was considered appropriate that some of this training could take place at an alternative available premises based at Dock Road. The Complainant attended a training session on 18 June 2024 where it was made clear that there was no employee going to be required to work at Dock Road. Additionally, it was clearly explained what updates to documentation would be implemented and the reasons for this. The legacy documents did not reflect the actual arrangements.

The Complainant sent a text stating her availability to work from Monday through to Thursday, which was fine. Also consistent with her file was her 15 hours per week, however, the Respondent had nothing on file to indicate she was on agreed hours of commencement. This was something the local manager would be prepared to consider depending on the reasons for seeking such accommodation, so long as it worked for the business, however as things transpired the Complainant never engaged any more on the subject.

The next communication was again by text indicating the Complainant’s intention to resign on the basis that she would not sign a new contract. The Respondent had no such requirement for employees to be compelled to sign a contract. The Respondent was taken aback by her suggestion that she was forced to sign a contract. However, the Respondent did require all of its employees to adhere to the Respondent’s policies and procedures as may be amended so that their core terms would not change. This was communicated to employees in September 2024.

No follow-up grievance was submitted by the Complainant.

The next communication the Respondent received was a letter from the WRC on 30 August 2024. The Respondent’s HR contacted the Complainant by telephone on 2 September 2024. The Complainant called back. It was offered to the Complainant to meet to discuss her concerns. She indicated she was in alternative work and may not be able to meet.

The Respondent again contacted the Complainant by phone on 24 September 2024 when the Complainant indicated that if the Respondent wished to reach out to her it should do so in writing.

Mr Clarke, HR again wrote to the Complainant on 29 September 2024 confirming that her terms and conditions had not changed. The Respondent confirmed that there is still work for the Complainant, subject to her availability. She was also informed that is she wished her hours to be increased, the Respondent would support it. 

The Complainant responded on 1 October 2024. In her letter she expressed her disagreement with the statement that her terms of employment remained the same. She further stated that she had no concerns to share and did not have anything she wished to share regarding her work with the previous owner. She stated that she had no desire to take up employment with the Respondent again.

POLICY & PROCEDURE ISSUES

An audit of the existing documentation for the business identified a whole range of deficits in documentation that required immediate and urgent updates with associated staff training to support the transition to enhanced policies and procedures.

While the updating of documentation was made clear to staff at meeting of 19 June 2024, it was not until September 2024 that staff were individually briefed on the actual changes.

This also required some updates to legacy terms and conditions. All staff were offered new contracts for their consideration and in instances where any employee was not happy with the contract format they were alternatively provided with terms & conditions which preserved the core elements of their legacy terms and updated for example to reflect current wages and agreed hours. No employee was provided with terms that were less favourable than their previous terms.

It was essential for the Respondent that employees’ adherence to any reasonable policy is considered necessary and cannot be optional. There was also the necessity for all employees to be adhering to common rules and standards.

There were small numbers of employees for which the Respondent was not provided with any written contracts or terms. In such cases the Respondent simply established the best available information in consultation with the employee in question. Following on from this the employee would be offered either a contract if that is what they wanted or terms if they did not wish to have in contract format. The Complainant fell into this category.

Working hours and rates are always agreed formally and in some instances the Respondent would offer banded hours if the employee requests this. Where an employee was to require concessions or accommodation for later starts to a particular shift for genuine reasons, the Respondent would always seek to accommodate such requests if at all possible, so long as it worked for the business. Quite often this would be formalised in writing for a fixed period at which time it could be reviewed.

ENHANCEMENT TO EMPLOYEES WORKING CONDITIONS

Considerable investment was provided to refurbish the premises. A staff rest area has been provided with a cloakroom. A sheltered area outside building has been provided for staff who smoke.

SUMMARY

There was no change in the legal entity of the employer. The Respondent has not at any stage changed the core terms and conditions of any employee and certainly not the Complainant. There was no action by the Respondent that resulted in any loss to the employee.

The Complainant alleges that the previous owner of the business (Premier Service Station Limited) did not advise her in relation to the transfer.

The Respondent asserted that no TUPE occurred. While sale of shares took place, the Respondent entity has not changed.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003) defines “transfer” as follows.

3. Application

(1) 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.

(2) Subject to this Regulation, in these Regulations—

“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.

A transfer of undertakings (‘TUPE’) occurs when a business or part of a business is taken over by another employer as a result of a merger or transfer. 

TUPE, however, does not apply where there is a sale of shares in an employing company but there is no change of employer when the shares in the company change hands. Share transfers are not covered by the Directive as there is no change in the identity of the employer (Henry v London General Transport Services Ltd. EAT/960/97).

While there may be exceptional circumstances, the key test is whether there has been a change in the legal or natural person who is responsible for carrying on the business and takes over the obligations towards the employees.

Having carefully considered the parties’ submissions and evidence, I find that in this case, while the sale of shares took place, no transfer of undertakings occurred.

I declare this complaint to be not well founded.

Sales of shares – no TUPE -