Complainant

Respondent

Parties

Jade  Jakhu

Paul Medve

Representatives

Pat Kenny of the Communications Workers Union

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-00056611-001

12/05/2023

The complainant says the transferor failed to meet their obligations when transferring their business.

The complainant started her employment in Castletroy Post Office on 19 February 2019, working for the respondent, the transferor. She was on annual leave from 21 November – 4 December 2022. During this period of leave she heard on the radio that the post office had closed. The respondent subsequently phoned her and said he had resigned and would be in contact again to let her know what was happening.

Later that day she received a phone call from the new owner of the business, the transferee, he asked if she would like to work with him. The complainant said she was on annual leave and she already worked in the post office and wished to continue to do so.

At the time of the transfer she worked 36.5 hours per week, was paid €15 per hour and was paid weekly.

She met the Area Manager on 5 December 2022 who told her that her hourly rate would be reduced and that she would be expected to extend her working hours. The complainant agreed to increase her hours over the Christmas period.

The complainant also met the new Postmaster on 5 December. He told her she would be paid monthly. He also said she would be expected to take on additional responsibilities. And further advised that he would have to consider whether it was sustainable for him to continue with these arrangements. The complainant was pregnant at this time and had advised the respondent of this in September 2022. She told the new Postmaster she would be commencing Maternity Leave in February 2023. In January 2023 the complainant was advised to stay off work until the birth of the child for medical reasons. When she told the new Postmaster this he refused to sign her maternity form and said he was not her employer and she was entitled to redundancy from the previous Postmaster. She eventually got the respondent to sign the maternity forms.

The complainant submits that a transfer of undertakings took place and the respondent was obliged to inform and consult his employees in advance of the transfer. He was also obliged to inform the new Postmaster of her terms and conditions of employment. She should have been able to continue her employment with the new Postmaster on the same terms and conditions of employment as she had with the respondent.

The respondent submits he resigned his position as Postmaster on 28 November 2022 for medical reasons. He met an An Post representative on 28 November and they confirmed that continuity of employment for the staff would prevail and someone was being appointed to take over Post Office, who would assume responsibility for the current staff. The respondent says he was medically unfit to continue.

I am satisfied that a Transfer of Undertaking took place. In investigating this complaint I have to decide if the Transferor honoured the terms of S.I. No. 131/2003 which state at Regulation 4 (1) “The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall reason of such transfer, be transferred to the transferee.”  Regulation 8 also places an obligation on the transferor to inform employees of the date of proposed date of the transfer, the reasons for the transfer, the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them.

At the hearing the respondent confirmed he resigned for health and financial reasons. He also said he had “tipped them off a number of weeks earlier”, meaning An Post. I therefore conclude that the respondent had the opportunity to fulfil his obligations under Regulations 4 and 8 but failed to do so.

I find the complaint to be well founded.

For the reasons given above I find the complaint is well founded and I require the respondent to pay the complainant €2,190, this being four weeks salary.

Transferor – failing to comply