Complainant

Respondent

Parties

Tara  O'Halloran

Bidvest Noonan

Representatives

Barnaba Dorda of SIPTU

Emily Maverley of IBEC

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-00057020-001

07/06/2023

The complainant says her entitlement to income continuance was not transferred when a transfer of undertaking took place. The respondent says the claim is out of time and that the income continuance was not part of the transfer agreement.

The complainant worked for the transferor for a number of years until the work was transferred to the respondent (the transferee) in 2020, along with her terms and conditions of employment. She has been in the same employment for 28 years.

In 2005 the complainant was transferred to a new pension scheme, along with specific benefits: death-in-service and an income protection scheme. In 2014 the complainant’s pension, together with the income protection scheme, transferred from defined benefit to defined contribution.

The complainant submits that the transferor listed the terms and conditions which were transferred on or around 18 February 2020. This document outlined that the complainant had an entitlement to income protection which was to be transferred.

In December 2021 the complainant went on long term sick leave. She was initially paid in accordance with the respondent’s sick pay scheme. Her income protection should have been triggered after 26 weeks of her sick leave, however, it was not triggered. When she requested the income continuance be paid she was refused. The complainant raised a grievance which was not upheld. The grievance was also rejected at an appeal.

The respondent submits that the complaint is out of time. They submit that section 10 (6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) stated; “A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint with that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable”.

I must firstly consider the issue of time limits raised by the respondent.

The complainant submits that the contravention relates to the respondent’s continued failure to observe her terms and conditions which were transferred on 18 February 2020. The contravention is still ongoing.

The complainant says she was surprised when, what she considered her entitlement to income continuance, was not triggered at the end of her paid sick leave. What is clear is that the respondent did not transfer the income continuance scheme in February 2020. I will not consider whether they should or should not have transferred the income continuance scheme at this stage. They did not transfer it in February 2020 and that is when any contravention would have taken place. The complainant argued that the contravention was ongoing and was therefore entitled to make a claim on 7 June 2023, when she became aware of the alleged contravention.

The times limits are in the legislation to allow a complaint about a transfer to be made within a set time frame, from the date of the transfer. It is not reasonable that a complaint can be made at any time in the future, when it effects an individual.

In these circumstances I conclude this complaint is out of time.   

For the reasons given above I find this complaint was made outside the allowed time limits and I therefore have no jurisdiction to investigate the complaint.

Out of time