Complainant

Respondent

Parties

David  Coulahan

Maersk

Representatives

Elizabeth McGeown ByrneWallace LLP

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-00064619-001

06/07/2024

The complainant has been submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) on 6th of July 2024.

The Respondent rejects the claim in its entirety.

It should be noted from the outset that although there are references to a TUPE and another employer the within claim is lodged against the named respondent only and there was no claim against the transferor.  There are also references to a dismissal but there is no claim submitted under the Unfair Dismissals Act.

The complainant submits that he was not provided with lunch by the respondent following his transfer to the respondent organisation in October 2023.   He submits that it was a term of the TUPE transfer that a hot meal would be provided to staff on a daily basis.

The complainant form from the form outlined the following complaint:  I had not been provided with lunch plenty of times. Most nights the lunches were drowned in sauce and put inside a refrigerator for at least 6 hours before you eat it. That is if you were provided with lunch at all. I asked my manager to send e-mails telling them to stop putting sauce on the food and I heard nothing back. I have a video I had taken the last time that nothing was provided, and nothing was said about it after I had mentioned it.

The respondent submits that under the Transfer Regulations the Respondent had certain obligations in respect of the Complainant, all of which the Respondent has complied with.  The Respondent submits that it  observed the Complainant’s terms and conditions of employment, which existed on the Transfer Date for the duration of his employment with them.

The respondent submits that  Complainant in his submission has not referenced any element of the transfer, and it is not clear what he understands the alleged breach of the Transfer Regulations to be.   The respondent submits that Lunch was not part of the Complainant’s terms and conditions on transferring to the Respondent.

The Respondent rejects the assertion that the Transfer Regulations have been breached and submits that the Complainant’s claim should be dismissed

The Complainant has brought a claim under Regulation 10 of the Transfer Regulations which provides that an employee may bring a claim to the WRC in relation to a breach of the Transfer Regulations.    The respondent denies that there was any  breach of the  Transfer Regulations and states that it has complied with all of its obligations to the complainant under the regulations.

The complainant advised the hearing that his complaint relates to the respondent’s failure to provide him with a hot lunch while at work.

The complainant advised the hearing that his complainant arose due to an incident on the 1st of January 2024 New Years day when the canteen was closed, and kitchen staff were not working.  The complainant stated that there was no lunch provided on that date and so he had asked the manager to send an email to make sure it did not happen again.  The complainant stated that all was fine for the next 5 months until the 15th of May when there were only 5 or 6 boxes with lunch left out for  staff but there were 11 staff working. 

The respondent advised the hearing that that Under the Transfer Regulations the Respondent had certain obligations in respect of the Complainant, all of which the Respondent has complied with. The respondent at the hearing denied that a hot meal formed part of the complainant’s conditions of employment either before or after the transfer. 

The complainant at the hearing acknowledged that  a hot meal did not form part of his contract prior to the transfer but that he understood that it was to be provided after the transfer.  The complainant went on to state that he had attended a meeting prior to the transfer where a slide was put up which stated that employees at the new location would be provided with a hot meal daily.   The complainant stated that it was put up on a screen by the respondent in a presentation prior to the transfer.  The complainant at the hearing showed a screenshot of an email which had formed part of a presentation delivered by the respondent prior to the transfer and indicated that 1 cooked meal a day would be provided.

The respondent denies that this slide had formed part of the complainant’s terms and conditions and stated that it had been shown to employees only as an example of what  they could expect at the new location irrespective of whether they chose to remain on their existing contract or transfer to a new contract with the respondent.  The respondent added that the complainant had opted to remain on his existing contract and not to move to a new contract with the respondent which was also on offer.

The Respondent advised the hearing that it held a number of consultation meetings with the Complainant prior to the transfer and that the Respondent observed the Complainant’s terms and conditions of employment, which existed on the Transfer Date for the duration of his employment with them.   The Respondent advised that the complainant was dismissed for gross misconduct but states that this dismissal was not for any reason related to the transfer.   I note in any event that there is no claim of unfair dismissal before me.

The complainant advised the hearing that lunch was not provided by the transferor prior to the transfer and that it was not part of his terms and conditions before the transfer, but he argues that the respondent had promised a hot lunch as part of the transfer agreement.

The respondent advised the hearing that no such right or obligation arose from the Complainant’s terms and conditions in place at the Transfer Date, which are the relevant terms and conditions. The Complainant was not provided with free lunch by the Transferor.  The respondent advised the hearing that there was no term in the contract (a copy of which was provided to the hearing) which provides for a hot lunch.  The respondent added that there was  no policy, collective agreement or custom and practice of providing lunch but that a Free lunch was an offering by the Respondent only and introduced after the transfer.  The respondent advised the hearing that a free lunch was  provided to employees at all major sites of the Respondent when possible but that this varies from canteen to canteen and may be a cooked lunch on larger sites (such as in Dublin) or sandwich vans at smaller sites.  The respondent advised the hearing that the hot lunch was an offering and was provided when possible, but it did not form part of the terms and conditions under which the complainant moved as he moved under his previous terms and conditions.  The respondent advised the hearing that lunch was an additional benefit no matter which contract staff were on as some staff chose to move to the respondent contract and some retained the transferor contract.  In addition, both parties confirmed that the complainant had opted to retain his previous contract and not to move to the respondent contract.   The complainant advised the hearing that he was given the option to retain his previous contract or move to a new one with the respondent, but he chose to retain his previous contract.

Having considered this matter and having regard to all of the circumstances and the evidence adduced, I am satisfied that the respondent has not breached the TUPE regulations and that this  this claim is not well founded.  

I declare this complaint to be not well founded.