ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00055642

Parties:

Complaints:

Date of Adjudication Hearing:  13/10/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act and/or Section 79 of the EmploymentEquality Acts, 1998 - 2015,and/or Section 27 of the Organisation of Working Time Act 1997, and/or Section 7 of the Terms of Employment (Information) Act 1994,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant submitted the complaints and they were received on 27 November 2024.            The Respondent’s Representative argues that the complaints cannot succeed as they were submitted against the wrong Respondent.

Summary of Respondent’s Case:

It is submitted that the above complaint is entirely misconceived, having been commenced against the wrong Respondent. The Respondent named in these proceedings transferred its business to the Potato link Limited and Maguire Maher Enterprises Limited on or around the 31st October 2024. The employment of the Complainant, and her colleague Sarah Tierney, transferred by way of TUPE transfer to the Potato Link Limited, the first purchaser on or around the 31st October 2024.  The Complainants other colleagues transferred to the second purchaser. All the Respondents transferred pursuant to TUPE regulations.

The new owner of the Respondents business Tommy Maguire made numerous attempts to contact the Complaint by telephone in order ensure she continued in employment following the transfer however the Complainant refused to take the calls. On the one occasion where she did take the call, upon hearing that it was her new employer, she indicated that she would have to return the call later, however she did not do so. The Complainant transferred to the Potato Link Limited by operation of law, but has declined to attend work with her new employer.

S.I No 131/2003 transposes the European Directive 2001/23

“on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.”

S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 confirms, pursuant to regulation 4(1) states as follows:

4. (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.

Reference was made to The Court of Justice of the European Union (CJEU) in Berg v Besselsen where unless member states enact legislation to include the transferor in ongoing liabilities the transferor is released from his obligations as an employer solely by reason of the transfer.

The Complainant in her own complaint form acknowledges that there was a transfer to the Potato Link Limited, where she states: “On 1st October I received a letter from my employer without reason of consultation, telling me my employment was being transferred to a different company - a company was a customer of Brendan… I am absolutely satisfied that I have been transferred to some unknown and unexplained Employer so that Brendan does not need to deal with my any further”

The Complainant’s new employer wrote to her on 1st October 2024 and clearly identified the company and confirmed her terms and conditions would be transferred.

In Sumroo v Mulligans of Sandymount Limited ADJ-00047051, a similar situation arose. In that case, the Adjudication Officer concluded that:

“Having considered the effect of the legislation and the jurisprudence of the CJEU I find that a complaint against the transferor may not be pursued, because all the liabilities under the Complainants contract of employment passed to the transferee on the date of the transfer, June 9th 2023”

It is submitted that in the current circumstances, the WRC has no jurisdiction to hear the case against the current Respondent. The current Respondent is unaware as to whether or not the Complainant has also pursued the Potato Link Limited.

The Complainant’s employment transferred to Potato Link Limited pursuant to TUPE regulations on or around the 31st October 2024. 

As such, the Respondent has no liability to the Complainant, and the Complainants case cannot succeed. 

Summary of Complainant’s Case:

In response to the preliminary issue argument put forward by the Respondent, it is submitted that the Transfer of Undertakings from the Employer to Potato Link was deliberately manufactured for the purpose of avoidance of the employee’s complaints.  The Complainant was on certified sick leave when the TUPE notice was issued.     Further, the cognisable period for the complaints in this case is from 28 May 2024 to 27 November 2024.  It is argued that the Respondent was responsible for the matters subject of the Complainant’s complaints for the majority of this time period.  In the alternative, it is requested that the name of the Respondent be changed to Potato Link.

Findings and Conclusions:

The preliminary issue raised here by the Respondent is that the incorrect Respondent has been impleaded as there was a transfer of undertakings prior to the lodgement of the complaints with the WRC.

A transfer of undertakings (TUPE) took place on 31st October 2024.  The within complaints were received by WRC on 27 November 2024.  I note the Respondent’s submission that the new employer made many attempts to contact the Complainant about the continuance of her employment and in the Complainant’s complaint form she states that she received a letter on 1 October 2024 from her employer stating her employment was being transferred. 

S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 confirms, pursuant to regulation 4(1) states as follows:

4. (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.

In this instant case, I find that the liabilities of the Transferor transferred to the Transferee on 31 October 2024 and therefore the Respondent named in these proceedings does not have liability and the complaints cannot be well founded.

In relation to the Complainant’s representative seeking to have the name of the Respondent changed, I find that there is no statutory power available to an Adjudication Officer to amend the title of proceedings in cases before them except for very limited and express circumstances.

There are limited circumstances in which a Complainant can apply to institute fresh proceedings.

Section 39 (4) of the Organisation of Working Time Act 1997 provides as follows:

“(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment[or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person...in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired”.

Having considered the matter, in that the Complainant was aware that her employment was transferred, the misnaming of the Respondent in this instant case, was not due to inadvertence.

In all the circumstances of the case, I find that a complaint against the transferor may not be pursued, because the liabilities under the Complainants contract of employment passed to the transferee on the date of the transfer, 31 October 2024 and I therefore find that the complaints are not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the findings and reasons above, I have decided that the complaints have been instituted against the incorrect Respondent and are not well founded.

Dated:   12-12-2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: