Complainant

Respondent

Parties

Danuta  Jachec

Vector Workplace And Facility Management Limited t/a Aramark Workplace Solutions

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Aleksandra Tiilikainen IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00061344-001

01/02/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave evidence under affirmation.  No cross examination was availed of as the evidence was not in contention.

The hearing took place with the assistance of a Polish interpreter provided by the WRC.

The respondent submitted that the complainant was employed as a cleaning operative from 30 January 2016 and most recently worked on one of its client sites in Mullingar. The cleaning contract was the subject of a tender process, and the respondent was unsuccessful in retaining the tender. Arising from its failure to retain the tender, the respondent engaged with the successful company to affect a transfer under the Transfer of Undertaking Regulations.  The complainant was part of this arrangement and was transferred with effect from 1 October 2023. 20 other employees also transferred over.

The respondent submitted that the Transfer of Undertakings Regulations were fully complied with. In July 2023 the employees affected were notified of the transfer and the complainant acknowledged receipt of the documentation it provided. Following this notification, the complainant sent a text to indicate that she was not willing to transfer. Her manager engaged in communication with her at the start of September and noted that if she did not wish to transfer over that no role was left for the complainant with the respondent. It was noted that her manager also had a similar conversation with the at the end of September.

The respondent submitted that the complainant sought a redundancy payment, but it's confirmed to her that no role was being made redundant and her role would continue under the transfer of undertakings regulations. The respondent submitted that this is not a genuine redundancy situation, and that the employee was misconceived and taking a complaint.

The complainant did not dispute the facts outlined by the respondent except for noting that she did not agree to transfer to the new employment under the transfer of undertakings arrangements.

She stated that she thought that if she was being let go, she has an entitlement to a redundancy payment. She stated that she thought the transfer was not compulsory and that she didn't want to just dismiss herself.

The complainant noted that the end of her employment relationship was not her fault and that she was constantly available for work. She noted that if the respondent had no work for her in Mullingar, they should let her go.

The complainant submitted that she should be entitled to a redundancy payment.

The respondent referred to various sections of the Redundancy Payments Act, 1967 and noted that Section 7 (1) states:

—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

The respondent submitted that the complainant was not dismissed by the respondent by reason of redundancy and noted Section 7(2) states:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The respondent submitted that none of the above applied in this situation.  It noted that the role was transferred over to another employer, and if on her own volition she decided she did not transfer then she resigned from her employment and there was no redundancy.

The respondent noted that in line with Regulation 4 of TUPE, the Respondent’s (i.e., the Transferor’s) rights and obligations arising from the complainant’s contract of employment transferred to the Transferee, at that point.  The respondent reiterated that at no stage was the complainant’s role made redundant. It submitted that it lost the contract after the re-tender process and the role transferred to Transferee under the TUPE Regulations.

The respondent relied on case of Symantec Ltd V Leddy [2009] IEHC 256 which was decided by Edwards, J in the High Court.  It is useful at this stage to consider the decision taken by the Court:

With great respect to the arguments advanced on behalf of the Defendants/Respondents the court disagrees profoundly with their view of the implications for Irish labour law of the ECJ's judgments in Katsikas and Merckx respectively. The court has no doubt but that the correct view of the matter is that which has been articulated on behalf of the Plaintiff/Appellant. As the Defendants/Respondents have rightly pointed out Irish implementing legislation does not make any particular provision as to what will occur if employees decide not to transfer. However, contrary to their belief, that fact operates against them. It does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-à-vis the transferor. It cannot do so because the fact that an employee objects to the transfer does not of itself have the effect of negativing the transfer. It is just that an employee is not obliged to continue his employment relationship with the transferee. However, the transfer still goes ahead unless a member state expressly provides for the contrary in its implementing legislation. That this is so is clear from the judgment of the ECJ in Katsikas. That Court explained that the purpose of the Directive is to allow the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor. However, he is not obliged to avail of this facility. As the Court said “the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.” However, “the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking's employees do not wish to remain in the transferee's employ.” In my view nothing could be clearer. If the Irish legislature had wished the employment relationship with the transferor to continue so as to facilitate the employee in making a claim for redundancy it could have enacted legislation to that effect. It has not done so. This court is completely satisfied that by virtue of regulation 4 (1) it is not possible for the Defendants/Respondents in this case to make a redundancy claim against the Plaintiff/Appellant. In all the circumstances the court is satisfied to allow the appeals in both cases.

The decision is clear in that although the legislation provides for the transfer of an employee, it does not require it.  However, as noted in the High Court decision the legislation has not been enacted such as to enable an employee to seek a redundancy payment where they decide not to follow their role and transfer to the new employer.  Accordingly, I find that that the complainant has not established an entitlement to a redundancy payment.

The respondent submitted that the complainant’s claim is misconceived. Having regard to the legislation and to the caselaw cited by the respondent I cannot find that the claim is misconceived notwithstanding my finding that the complainant has not established an entitlement to a redundancy payment under the Act.  Accordingly, I find that the complainant is not entitled to succeed in her appeal against the decision of the employer that she is not entitled to a redundancy payment.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant is not entitled to succeed in her appeal against the decision of the employer that she is not entitled to a redundancy payment.

Redundancy Payments Act - Transfer of Undertakings – Role transferred – no entitlement to a Redundancy payment established.