Complainant

Respondent

Parties

Adrian Doroghi

Synergy Security Solutions Limited

Representatives

Mr Marius Marosan

Mr Frank Walsh

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057071-001

12/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057071-002

12/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057071-003

12/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057071-004

12/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057071-005

12/06/2023

The complainant is a security guard and he commenced working for the respondent on September 9th 2017.  In accordance with Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, he transferred to a new employer on March 1st 2023.  He submitted complaints for adjudication concerning maximum weekly hours, Sunday pay, public holiday pay and pay for night work.  He also complains that he suffered a shortfall in his wages in relation to a night shift allowance and pay for overtime.

The complainant gave evidence at the hearing regarding these complaints.  On behalf of the respondent, Mr Walsh rebutted that evidence.  In response to the complaint regarding excessive weekly hours, Mr Walsh submitted that the complainant asked to work additional shifts, and that the respondent conceded to this.  On March 16th 2023, following his transfer to his new employer, the complainant was paid €1,404 in respect of six months’ overtime pay.  Regarding the Sunday premium, Mr Walsh said that the complainant was paid a Sunday allowance of €3.44 per hour for working on Sundays.  In relation to public holiday pay, on March 16th 2023, the complainant was paid €193.00 in wages due to him for working on a public holiday.  With effect from December 16th 2022, Mr Walsh submitted that the complainant received a night shift allowance of €16.80 per shift. 

At the hearing, I was informed that the complainant transferred from the respondent to a new employer on March 1st 2023.  Before concluding the proceedings, I asked the representatives to consider the implications for this complaint of the decision of the Labour Court in 2018 in J Donoghue Beverages Limited and Murphy, TUD 185.  This concerns the application of Article 3 of the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings or businesses or parts of undertakings or businesses.” 

In Ireland, the relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  Article 3(1) of the Directive which is transposed as Regulation 4, provides that,

“The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.”

Article 3 also provides that member states may create a continuing liability on the Transferor, post-transfer:

“Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.”

In the decision of the Court of Justice of the European Union (CJEU) in Berg v Besselsen IRLR 447, the Court referred to the option of member states to enact legislation to include the Transferor in ongoing liabilities under a contract of employment; but, where this has not happened, the Court stated:

“It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer…”

The provision that member states may provide that the transferor and the transferee are jointly liable for employment-related obligations has not been transposed into SI 131/2003.  As a result, the basic principle in Article 3 of the Directive that liability passes from the transferor to the transferee is the applicable law in Ireland.

In its decision in J Donoghue Beverages Limited and Murphy, the Labour Court addressed this issue.  Ms Murphy transferred from Donoghue Beverages to a new employer and she claimed that her former employer failed to properly consult with her, in accordance with Regulation 8 of SI 131/2003.  The Court held that,   

“…following a transfer of undertakings within the meaning of the Regulations, the liability for the transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer rest with the transferee.”

Conclusion

On March 1st 2023, in accordance with Statutory Instrument 131/2003, the complainant transferred from the employment of the respondent to a new employer.  On that date, in accordance with Regulation 4(1), any remedy for the failure of his former employer to fulfil his obligations to him must be brought against the transferee.  It follows therefore, that, as the complainant submitted these complaints against his previous employer (the transferor), he has identified the wrong respondent.

As this complaint has been wrongly submitted against the respondent, I decide that it is not well founded.

Transfer of undertakings