Complainant

Respondent

Parties

Samantha  Moloney

5 Star Facility Services Cleaning Company

Representatives

  Daniel McCarthy

 Martin Clarke

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-00060731-002

23/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061146-001

23/12/2023

The Complainant worked for the Respondent from November 2021 to 17 January 2024(based on the date of the proposed transfer being 18 January 2024). She contends that she was employed as an area manager which is denied by the Respondent. There are two complaints. One is that the Respondent never issued a statement of terms to her in writing, which is denied. The second is that when another company-G-took over the cleaning contracts in Limerick in January 2024, they disputed her role when working for the Respondent saying they were operating on the information provided by the Respondent. Following that disagreement, she never worked for G. The complaint under TUPE is that the incoming employer-G-was misinformed by the Respondent regarding her role and the Complainant had no statement of terms to give to G showing her true role and responsibility with the Respondent. The parties agreed that the Complainants rate of pay was €845 per month.

The Complainant commenced employment with the Respondent in November 2021. It was submitted on her behalf that she had a lot of experience in the cleaning industry and that she agreed terms with the Respondent at a hotel in Limerick. Her role was to be oversight of staff across various sites in Limerick. Subsequently she agreed to cleaning in one location, Callen Centre, on the basis that it was a high security area and the Respondent wanted her to cover that area, telling her she would be well paid for the work. The Complainant described her work to the hearing, adding that she had no manager to report to in the area as there was none. An increase in pay for her duties was promised by the Respondent but never happened.

Terms of Employment Information Act 1994.

Prior to the hearing, the Respondent provided a statement in which he contended that the Complainant was issued with a written statement of her terms in November 2021. In response, the Complainant provided a copy of a text message dated 10 December 2021 where she asked about a contract of the  terms of employment. In response the Respondent assured her that one would be issued. It is her contention that the text message proves that she was asking for a statement of terms after the meeting in Limerick in November 2021 at which her employment and terms were agreed verbally. It is the Complainants  evidence that she never received anything in writing from the Respondent at any stage. She denied meeting the Respondent on 15 December 2021 and receiving a statement of terms as claimed by Mr Clarke  in his evidence to the hearing.

Transfer of Undertakings Regulations S.I. 131 2003(TUPE)

The issue which forms the basis of this complaint is the information which was passed by the Respondent to G about the role of the Complainant with the Respondent. The employees were told there would be no change in their conditions following the transfer. The Complainant  maintains that, prior to the transfer,  she was an area manager covering a number of sites in the area and was not a supervisor cleaner on one site as G maintained, who told her they were acting on the information provided by the Respondent.  The Complainant had signed a form with the Respondent agreeing to pass information over to G which she now realised was a breach of GDPR. Following the dispute with G where they were offering her cleaning/supervisor work on one site only(which she had never previously cleaned), the Complainant never actually worked for G.

Terms of Employment Information Act 1994.

In his evidence to the hearing, Martin Clarke stated that a meeting  took place at the Kilmurry Lodge Hotel in Limerick on 15 December 2021-after the date of the text submitted by the Complainant. His position is that a statement of terms was provided to the Complainant by him that day in the presence of Alan Clarke but she did not sign and return the statement. Asked if the statement was signed and dated by the Respondent, Clarke replied, no, the practice was to sign and date the document when the employee returned a signed copy.

Transfer of Undertakings Regulations S.I.131 2003(TUPE)

In response to the AO, Mr Clarke described the change of cleaning contractor from his company to G as a Transfer of Undertakings. 95% of the staff on the contracts in question transferred to G.  Mr Clarke disputed the Complainants claim to be an area manager. She was a supervisor/cleaner. Asked what information was passed by them to G, Mr Clarke replied that he had an email which showed they informed G that the Respondent supervised three named locations and cleaned in the location she named at the hearing. He agreed to provide a copy of the email to the WRC following the hearing.

Transfer of Undertakings Regulations S.I.131 2003 (TUPE)

There is no dispute by the Respondent that the transfer of the Complainants employment to G was a transfer of undertakings. Given previous Decisions that the transfer of a contract does not represent a transfer of undertakings for the purposes of the EU Directive/ Statutory Instrument, the reason for the acceptance that a transfer of an economic entity occurred appears to be that the change of contractor included the transfer of 95% of the Respondents employees to the new contractor. As there is no dispute regarding the existence of a transfer and both the transferor and the transferee appear to have acted as accepting that a transfer of undertakings occurred, it is not necessary for me to decide on whether a transfer of undertakings i.e., an economic entity, did in fact occur. Regarding the passing of employment details by the Respondent and the reference to GDPR, the ERO for the contract cleaning industry S.I. 110/2022 expressly provides for the mandatory passing of employee information by the transferor to the transferee where there is a transfer of undertakings. Indeed, it is difficult to see why the Complainant is criticising the passing of information to the transferee especially when she gave signed approval for that transfer.

The core issue is whether the Respondent complied with the TUPE Regulations.

From the documents provided before and after the hearing, it is evident that the Respondent initially provided inaccurate information to the transferee concerning the locations and role which the Complainant performed prior to the transfer. Acting on that misinformation G proceeded to assign the Complainant to one location only, as a supervisor/ cleaner, and were not made aware that the Complainant in fact supervised three locations and cleaned in another location until 17 January 2024 when they sent a query to the Respondent which made it clear that the Complainant did indeed supervise three sites and cleaned at a fourth site. Part of that query from G was concerned with the rate of pay claimed by the Complainant which was more than she received from the Respondent prior to the transfer. How the error on the part of the Respondent occurred is not known-as they did not concede to an error at the hearing. In summary the Respondent breached their obligation to notify the transferee of the correct details of the Complainants employment, which led to a dispute between the Complainant and G. That error was in  relation to the role of supervisor/cleaner and locations with the supervisory responsibilities of the Complainant and does not extend to accepting that she was an area manager, entitled to a higher rate of pay as she has claimed in this complaint. It is accepted that the Complainants rate of pay was in excess of the standard rate, which supports her claim that she performed mainly supervisory duties and was paid above the minimum for the cleaning of the Callan Centre two hours per week. A great deal of difficulty might have been avoided if the Respondent had provided the Complainant with the initial form and information they passed on to G. Or, if the Complainant had contacted the Respondent as soon as it became evident that G was acting on incorrect information supplied by the transferor.

Having carefully examined the terms of Section 8 of the Transfer of Undertakings Regulations, Information and Consultation,  taking into consideration the evidence of the Complainant that the Respondent informed their employees that there would be no change in their terms and conditions of employment, I find that an error in the information provided to the transferee does not constitute a breach of the regulations in circumstances where it was intended that previous terms and conditions would continue as before the transfer and the employees were notified accordingly.

Relevant extract from Section 8 of the TUPE Regulations

Information and consultation.

8. (1) The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of -

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

and

(d) any measures envisaged in relation to the employees.

(2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5) Where there are no employees’ representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d) any measures envisaged in relation to the employees.

(7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.

Terms of Employment Information ACT  1994,as amended

The Respondent failed to provide the WRC with a copy of the terms and conditions of employment which they maintain were provided to the Complainant in Limerick on 15 December 2021. I am asked to accept that a document was issued on 15 December, was not signed by the Respondent, and would not be signed, nor, by extension, would a copy be retained by the Respondent until after the document was signed by the employee. Given the obligation under the legislation is that the employer sign the document issued with no corresponding obligation on the employee and there was no follow up by the employer seeking acceptance of the statement issued when they themselves had not signed the statement, on the balance of probabilities I find it more likely  that no written statement was issued to the Complainant by the Respondent. Compensation of four weeks gross pay is considered appropriate in circumstances where the absence of the written statement contributed to the difficulties experienced by the Complainant with G when as transferee. G were operating on the information provided by the Respondent, which as seen under the TUPE  complaint, was initially inaccurate and led to the Complainant being offered continued employment on the basis of misinformation which in turn led to a dispute between the Complainant and G.  

CA-00060731-002 Transfer of Undertakings Regularions,2003

This complaint by the Complainant Samantha Moloney against the Respondent Five Star Facility Services is not well founded.

CA-00060731 -001 Terms of Employment Information Act 1994, as amended

This complaint by the Complainant Samantha Moloney against the Respondent Five Star Facility Services is well founded. The Respondent is to pay the Complainant €845 compensation.

Statement of Terms of Employment-Application of TUPE in contract cleaning transfer