Complainant

Respondent

Parties

Jelena  Jevsejeva

Derrycourt Cleaning Specialists

Representatives

  self

Hugh Hegarty Management Support Services (Ireland) 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-00054368-001

04/01/2023

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-00054368-005

04/01/2023

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-00054368-006

04/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054368-009

28/06/2023

The Complainant was an employee of Emerald Facility Service. This Company had a contract for cleaning services to a hospital and arising from a tender process Emerald Facility Service was not successful. The new provider of the service was Derrycourt Company Limited.

The Complainant requested that, if possible, she would like to remain with Emerald Facility Service and over several weeks several locations were identified by Emerald as possible locations for the Complainant to remain with Emerald Facility Service. None of these were deemed to be suitable based on location or the hours to be provided.

The process of identifying possible alternative sites with Emerald led to the date for joining the new provider passing. This Complaint relates to a 7-week period from about mid-November to early January.

The Complainant when she joined the new Company purely based on a voluntary basis was credited with her service with Emerald and all terms that she previously had was also given to her.

The Respondent in this case stated that they are a stranger to the complaints now being brought. At no time at the point of transfer was the Complainant’s details given to them. The date of transfer passed. However, based on the Company’s need they were able to facilitate a later date of joining. However, there has been no breach of the regulations relating to transfer, notice or any statutory obligation. The Complainant at a date in January 2023 joined the company not pursuant to a transfer but arising from a vacancy at the Company.

The Complainant stated that while she did request that she might stay with Emerald she never was properly consulted with about the transfer to the new entity who had won the contract. Arising from a failure to notify her in writing and to clearly state that she was at risk of being unemployed if she failed to make the transition, she is at a loss of 7 weeks pay. This omission and failure by both her previous employer and her new employer created very significant financial pressure an stress during this 7 week period.

The Respondent was never informed that the Complainant  was transferring over. They are a stranger to the complaints being made against them.

In Meehan Employment Law 2nd ed 2023 at Chapter 6 states that the purpose of the regulations is:

6-02

The 2001 Directive resulted in the 1980 and 2000 Regulations being repealed by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, which came into operation on 11 April 2003.12 The 2003 Regulations attempt to protect employees’ statutory and contractual rights in the event that the business is transferred as a going concern. Barnard13 describes the Directive as providing three pillars of protection for employees: the automatic transfer of the employment relationship from the transferor to the transferee in the event of a transfer; secondly, the protection against dismissal by the transferor or transferee subject to the employer’s right to dismiss for “economic, technical or organisational reasons entailing changes in the workforce”; and thirdly, information and consultation with the representatives of the employees affected by the transfer. In Spijkers v Gebroeders Benedik Abatoir,14 the ECJ stated that the purpose of the Community legislation was:

“To ensure the continuity of employment relationships existing within a business irrespective of any change of ownership… the decisive criterion for establishing whether there is a transfer … is whether the business in question retains its identity.”

There is a direct conflict in the evidence provided by the Complainant and the Transferor Emerald Services Ltd.

Ms Kelly manager with Emerald stated under oath that a comprehensive consultation process did take place on time. That on or about the 17th of October 2022 a consultation meeting took place with all employees affected by the transfer. At this meeting the process of transfer was explained, and a detailed information pack was given to each employee informing them of their rights. Ms Kelly has stated that while the complainant has stated that she was not aware of the deadline date to transfer that was not so.

On the sworn evidence of Ms Kelly manager with the transferor, discussions were ongoing with the Complainant about staying with the transferor. In turn whether it was a fair assumption, the Complainant believed that she would be accommodated with the transferor. Therefore, the time to move to the transferee passed. In these circumstances it is not just to assign any liability to the transferee for any omission or failure. The factual matrix clearly shows that a need and vacancy existed at the transferee for the Complainant as evidenced by their actions. The reason for the delay did not relate to the transferee failing to comply with the regulations, rather the belief by the Complainant that she was staying with the transferor. In these circumstances the time to transfer passed and the Complainant did not exercise their right to transfer.

On the sworn evidence of Ms Kelly manager with the transferor, discussions were ongoing with the Complainant about staying with the transferor. In turn whether it was a fair assumption, the Complainant believed that she would be accommodated with the transferor. Therefore, the time to move to the transferee passed. In these circumstances it is not just to assign any liability to the transferee for any omission or failure. The factual matrix clearly shows that a need and vacancy existed at the transferee for the Complainant as evidenced by their actions. The reason for the delay did not relate to the transferee failing to comply with the regulations, rather the belief by the Complainant that she was staying with the transferor. In these circumstances the time to transfer passed and the Complainant did not exercise their right to transfer.

The Complaint is not well founded.