Complainant

Respondent

Parties

Mariusz Lepionka

Apleona Ireland Ltd.

Representatives

  Self

Gareth Kyne Gareth Kyne HR

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063418-001

12/05/2024

The Complainant is a cleaning operative who employed by contract cleaning services companies in the period covered by this complaint. In August 2022 there was a change of contractor on his location in Galway. The Complainant signed a form with the new employer  and the Respondent in this case on 14th August 2022 and commenced employment with them. This complaint is concerned with an alleged failure to provide the Complainant with a statement of terms of employment under the Act. The Complainants rate of pay was €1122 gross  per fortnight.

The Complainant previously worked at the named site in Galway for another company, Momentum. He believed he did receive a statement of terms from that employer. In August 2022, he signed a form agreeing to transfer to Apleona Ireland but did not receive a statement of terms. In his complaint form he described difficulties obtaining protective clothing from Apleona. The main difficulty he experienced was that the number of operatives working on the site was reduced from three to two. As a result, there was no cover available when he needed to take leave for any reason. In October 2023,his manager approved an application for four weeks leave for March 2024. He was told  there were problems inputting the leave application. His manager was to get back to him about the problem. The Complainant could not make contact with the manager and felt he was avoiding him. When he contacted HR in January 2024, they told him the manager had not raised the issue with HR. His application for the leave in March 2024 was later declined although it had been approved by the manager. Based on that approval he had made arrangements for ‘a trip of a lifetime.’ In his complaint form he referred to stress in the workplace and related issues. He had understood that all of his previous terms of employment would transfer to the new employer but the number of employees on the site was reduced with no cover.

Under cross examination the complainant agreed he had signed a form with the Respondent which contained conditions of employment and that he had met with a named manager at which the terms were discussed and he had agreed to the transfer. When it was put to him that his line manager was out sick for an extended period, the Complainant replied that he was not made aware of that.

As he had referred to a statement of terms with his previous employer, the Complainant was asked to provide a copy following the hearing. He later wrote to say he could not locate a copy.  

The Respondents position is that this was a transfer of undertakings(TUPE). The information provided by Momentum was that contained in the document signed by the Complainant on the 8th of August 2022 as follows: Rate of Pay; Hours of Work; Shift Pattern; annual leave entitlement. This occurred at  a meeting with a manager who has since left the employment. The Respondent accepts the Complainant was entitled his  statutory leave entitlements. However, the Complainant did not complete a grievance process regarding his issues. The Respondent is of the view they have no case to answer.S.I.110 2022 containing the ERO for the contract cleaning industry was submitted in support of their position. The Respondent sought and received the opportunity to make a post hearing submission on the transfer as a transfer of undertakings(TUPE) and whether the issues raised by the complainant were relevant in the context of a complaint under the Terms of Employment Information Act. At the hearing reference was made to the Suzen Judgement. The majority of staff had transferred from Momentumto Apleona 9the Respondent).No further submission was received from the Respondent and this decision is based on the available information and evidence.

I have considerable doubt that a transfer of undertakings occurred between the Complainants previous employer Momentum and Apleona. The full extent of the substance of the transfer appears to have been the agreement by individual employees of Momentum to transfer to Apleona on the basis of the basic terms provided in this case, in the document signed by the Complainant on 14 August 2022. A TUPE is an automatic right to transfer which requires no individual agreement to terms by the transferring employee. The only resource which transferred was the employees who chose to do so. This was no more than a contract for the provision of a service changing hands between two contracting companies. Such a scenario does not fall within the definitions at section 3 of the Transfer of Undertakings Regulations S.I.131.2003.

3. (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

(2) Subject to this Regulation, in these Regulations -

“transfer” means the transfer of an economic entity which retains its identity;

“economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.

If S.I.110 2022 does indeed  applies to the Complainant, then that instrument mirrors the requirements of the Terms of Employment Act 1994 in requiring the Respondent to issue a detailed statement of terms to the Complainant after a specified period. The Respondent did provide a copy of such a statement of terms containing the name of the Complainant and the names of two managers of Apleona. However, neither manager had signed the document as they are required to do, it is undated and there is no evidence that this document was issued to the Complainant. He did not complete the mandatory acknowledgement clause required of him to confirm he had read and understood the terms. On the balance of probabilities, in the absence of evidence to the contrary,  the conclusion is that the Respondent was required to, but failed to meet their obligations under the Terms of Employment Information Act 1994 as amended at Section 3(1) of the Act as follows:

Written statement of terms of employment.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

        While confirming the Complainant has a valid complaint that a detailed statement of terms was not issued to him, the issues which were the source of his grievance, in particular the number of employees on the site, would not be covered in a statement of terms, would not be a condition of employment and therefore a correctly issued statement after two months would not have resolved his issues which were, as implied by the Respondent representative, more in the nature of a grievance. In all of the circumstances I consider the equivalent of two weeks gross pay to the appropriate amount of compensation.

CA-00063418        Terms of Employment Information Act 1994 The complaint by Mariusz Lepionka (the Complainant) against Apleona Ireland Ltd(Respondent) is well founded. The Respondent is to pay the Complainant €1122 compensation.