Worker

Employer

Anonymised Parties

Housekeeping Assistant

Customer-Focused Services Group

Representatives

Barnaba Dorda of SIPTU

Emily Maverley of IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001438

07/06/2023

The worker says she lost financially when she was told her entitlement to income continuance was not transferred when a transfer of undertaking took place in 2020. The employer says the income continuance was not part of the transfer.

The worker was employed by the transferor for a number of years until the work was transferred to the employer in 2020, along with her terms and conditions of employment. She has been in the same employment for 28 years.

In 2005 the worker was transferred to a new pension scheme, along with their specific benefits (death-in-service and an income protection scheme). In 2014 her pension, together with the income protection scheme, transferred from defined benefit to defined contribution.

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

In December 2021 the worker went on long term sick leave. She was initially paid in accordance with the respondent’s sick pay scheme. She says 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 worker raised a grievance which was not upheld. The grievance was also rejected at an appeal.

The worker asks that her entitlement to income protection is reinstated and that she be compensated for a financial loss of €12,151.

The employer says there was extensive consultation with individuals and SIPTU, leading up to a transfer of undertakings which took place on 18 February 2020. The employer says throughout the process and in accordance with the proposal agreed and signed by the WRC at a conciliation under the auspices of the WRC there was at no time any ambiguity regarding the discontinuance of the income continuance scheme.

The employer says the collective agreement which formed part of the transfer agreement was clear; it states: the employer “will investigate the possibility of providing an income continuance policy to staff”.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The worker says she was in an income continuance scheme prior to the transfer of undertaking in February 2020. She assumed it had transferred with her other terms and conditions of employment. She went on sick leave in December 2021 and after 26 sick pay she assumed the income continuance scheme would come into effect. When it didn’t she asked why and was told there was no such scheme. The worker went through the grievance procedure but this was not upheld, either initially or on appeal.

The worker relied on a letter from the transfer dated 15 September 2020 which listed the individual terms and conditions of employment held by her prior to the transfer. The list included the income protection scheme. There is no issue that it was a term immediately prior to the transfer.

Section 4 of the Regulations states:

(1)    The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2)    Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

The WRC document referred to by the employer was dated 14 February 2020 and stated “Following significant and intensive engagement in facilitated discussions under the auspices of the Workplace Relations Commission, the Commission is issuing the following proposal on the basis that it has been recommended for acceptance by all parties.” The parties involved in the discussions included SIPTU who are representing the worker in this dispute. The document confirmed the employer “will investigate the possibility of providing an income continuance policy to staff”.

No documents were provided to indicate this agreement was not in place at the time of the transfer on 18 February 2020.

It is my view that the WRC document amounts to a collective agreement within the meaning of section 4 (2) of the Regulations and due fell to be employer to observe their terms. As such this means it was agreed the income continuance scheme would not transfer.