Complainant

Respondent

Parties

Jelena  Jevsejeva

Emerald Facility Service

Representatives

Vadim Karpenko Legal Bridge Advisors

 Ms Kelly Manager

Act

Complaint 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-00054368-004

04/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00056610-001

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00056610-002

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056610-003

28/06/2023

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-00056610-004

28/06/2023

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-00056610-005

28/06/2023

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-00056610-006

28/06/2023

The Complainant was an employee of Emerald Facility Service. This Company had a contract for cleaning services to a hospital and arising from a tender process Emerald Facility Service was not successful. The new provider of the service was Derrycourt Company Limited.

The Complainant requested that, if possible, she would like to remain with Emerald Facility Service and over several weeks several locations were identified by Emerald as possible locations for the Complainant to remain with Emerald Facility Service. None of these were deemed to be suitable based on location or the hours to be provided.

The process of identifying possible alternative sites with Emerald led to the date for joining the new provider passing. This Complaint relates to a 7-week period from about mid-November to early January.

The Complainant when she joined the new Company purely based on a voluntary basis was credited with her service with Emerald and all terms that she previously had was also given to her.

The date of transfer passed. However, based on the Company’s need they were able to facilitate a later date of joining. However, there has been no breach of the regulations relating to transfer, notice or any statutory obligation. The Complainant at a date in January 2023 joined the company not pursuant to a transfer but arising from a vacancy at the new Company.

This Complaint is brought against the Transferor arising from the loss of pay over a 7-week period that she attributes to the omission of her former employer.

In summary, the actions taken by Emerald—including delayed communication of the transfer, inadequate information provision regarding TUPE Regulations, and non-payment of wages—unmistakably point to a breach of my rights under TUPE Regulations. These actions created an unjust and uncertain work environment for me during a pivotal period of transition

The Complainant informed Derrycourt that nobody explained the TUPE Regulation to her.

 On the 15th of December, she received legal advice and information about TUPE Regulations from a third party. She asked Derrycourt for a copy of the contract and stated that not only does the Portrane location protect my rights under TUPE Regulation, but that they may offer me other locations as well. She received a response from them only on the 3rd of January. I accepted an offer at Crumlin Hospital and started work on the 6th of January 2023. I still do not have a contract with Derrycourt, and as far as I know, Derrycourt still does not have a copy of my contract with Emerald.

In a letter from Derrycourt dated 12th December 2022, it stated they could hire the Complainant at Portrane under her current terms and conditions, but for any other site, she would need to fill out a form to be hired. This meant she would lose the 12.5-year contract she held with Emerald.

In light of the events surrounding my transfer from Emerald Facility Service, it is evident that rights under TUPE (Transfer of Undertakings Protection of Employment) Regulations were violated by Emerald in various ways:

1. Failure to Transfer Relevant Information:

• This delay in communication prevented me from making informed decisions about my employment and the subsequent transfer.

• The information provided about the terms and conditions of the transfer, especially about TUPE Regulations, was insufficient.  During the verbal communication on the 20th of October2022,no mention of TUPE Regulations was made. Additionally, the documentation subsequently provided by Emerald did not adequately address this critical aspect of the transfer.

• The lack of clear and timely communication from Emerald left the Complainant in a state of uncertainty, making it challenging to make informed choices about her employment and the impending transfer.

• All documents submitted to the WRC by Transferor are irrelevant to my application and circumstances. They do not reflect my rights under TUPE Regulations, or the entitlements owed to me following 12.5 years of continuous service with the same employer.

• Derrycourt has not contacted me, although Emerald claims to have sent them her file.

2. Non-Payment of Wages:

• Due to the transfer, I experienced a significant delay in receiving her salary. Additionally, she lost her Working Family Payment (WFP) because she didn’t work 38 hours fortnightly as required. She subsequently filed an appeal, as it was not her fault that she lacked the required working hours. That payment was only restored on the 9th of March 2023.

• The ambiguity surrounding her employment status during the transitional period further exacerbated the issue, as it left her without a clear understanding of her financial standing and the terms under which she was to be compensated.

In summary, the actions taken by Emerald—including delayed communication of the transfer, inadequate information provision regarding TUPE Regulations, and non-payment of wages—unmistakably point to a breach of her rights under TUPE Regulations. These actions created an unjust and uncertain work environment for her during a pivotal period of transition

A meeting was arranged with all Emerald Facility Services staff to take place on Thursday 20th of October 2022. During this meeting TUPE and the regulations were discussed with all staff and confirmation given that the terms and conditions would remain as per their individual contracts of employment. Redundancy was not discussed as it was not a redundancy situation. During this meeting the Complainant requested Emerald Facility Services find her part time work as she wished to stay working with Emerald. The Complainant made this  request arising from being  informed that she would be transferring to another company under TUPE.

Despite numerous phone calls it was the 17th of October before Emerald were eventually contacted by the client  concerning the closing date of the hospital. At that point the  letter to staff was written. At this stage the closing date was only given verbally for safety reasons as this is a high secure mental health facility.  The consultation and information  meeting was agreed for the 20th of October 2022.  Tupe conditions were confirmed with staff as per below communication:

“Under the Tupe regulations all staff are entitled t transfer to Derrycourt under the same terms and conditions as per the individual contracts of employment. Emerald Facility Services will endeavour to assist in any way we can with this transfer and to answer any queries you may have in relation to this transfer.”

 The Complainant was communicated with numerous times during this period and there are various email threads showing this communication.

The Transferor also sent all information to the Transferee which includes relevant details of the Complainant.

Separate to this process several roles were identified and offered to the Complainant under the control of Emerald, and they were declined. Arising from this exercise the Complainant did not transfer on the required date. However, she did transfer later to Derrycourt. At a related hearing the Transferee stated that all terms and service are recognised by them.

The regulations set out the  consultation requirements to be met prior to the transfer:

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.

On the facts the transferor ( Emerald) did substantially meet the requirements as set down in the Regulations.

I note that Regulation 4 states:

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.

I note that Regulation 10  states:

(5)      A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

(a)     declare that the complaint is or, as the case may be, is not well founded;

(b)     require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

(c)     require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i)      in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii)      in the case of a contravention of any other Regulation, not exceeding 2 years remuneration

I find that Employer did apply best endeavours to find another role for this Complainant. The expectations of the Complainant could not be met. In these circumstances while there are some deficits in the process of consultation, such as appointing an employee representative, the requirements were substantially met and therefore I  decide not to award compensation for a technical breach of regulation 8.

The complaints other than a breach of Regulation 8 are misconceived as the transferee would be liable for the protection of these employment rights.

I find that there was a technical breach of Regulation 8 concerning the appointment of an employee representative. However, the facts show that the Transferor actively engaged with employees and met the requirements as set down in the regulations.

I find that Employer did apply best endeavours to find another role for this Complainant. The expectations of the Complainant could not be met. In these circumstances while there some deficits in the process of consultation, such as appointing an employee representative, the requirements were substantially met and decide not to award compensation for a technical breach of regulation 8.

The complaints other than a breach of Regulation 8 are misconceived as the transferee would be liable for the protection of these employment rights.

CA-00054368-004:

It is alleged that the Complainant was dismissed by my current/new employer (Transferee) on the grounds of the transfer of the business/undertaking. I find that the employee delayed her transfer arising from seeking a new role with the transferor, that didn’t work out, despite best endeavours by the Respondent. The complaint is not well founded.

CA-00056610-001:

It is alleged that the Complainant did not receive the National Minimum Rate of Pay; the complaint is misconceived being made against the Transferor and I determine that it is not well founded.

CA-00056610-002:

It is alleged that the Complainant did not receive the appropriate payment in lieu of notice of termination of my employment

The Complainant’s employment was not terminated and the Complainant failed to transfer across to her new employer the transferee until a later date. The complaint is not well founded.

CA-00056610-003:

It is alleged that the Complainant did not receive all my rights during the period of notice. The complaint is not well founded as no case has been made out to support the claim. The employer has detailed a comprehensive process of engagement with the employees and provided all information to the Transferee.

CA-00056610-004:

It is alleged that the Complainant was dismissed by her previous  employer (Transferor) on the grounds of the transfer of the business/undertaking. The complaint is not well founded, and the Employee was not dismissed and by personal choice did not transfer on the date of transfer as she sought alternative employment with the Transferor.

 CA-00056610-005:

It is alleged that the  previous employer (Transferor) did not inform representatives of certain details of the transfer.

While this complaint is not particularised; there is no reference by the Employer to an employee representative process. I find this to be a technical breach of the Regulations; however, I have determined that overall, the consultation process was satisfactory and decline to make any award.

CA-00056610-006:

The Complainant alleges that the previous employer (Transferor) did not consult in relation to the transfer.

While this complaint is not particularised; on the very detailed submission of the Employer and comprehensive account of the process followed given at the hearing, I find that substantially the obligation to consult was met other than appointing an employee representative; I find that that the complaint is not well founded.

TUPE