PWD2643

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045756 (CA-00056610-002)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991. 

The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

The following is the Court's Decision.

DECISION:

1. Background to the Appeal

This is an appeal by Ms Jelena Jevsejeva (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00045756/CA-00056610-002, dated 11 February 2025) under the Minimum Notice and Terms of Employment Act 1973 (‘the Act’). Notice of Appeal was received in the Court on 20 February 2025. The Court heard the appeal in Dublin on 15 January 2026.

1. Factual Background

The Complainant was employed by the Respondent as a part-time cleaner at the Central Mental Hospital site in Dundrum until the Respondent lost that contract to a competitor. The loss of the contract gave rise to a transfer of undertakings from the Respondent to Derrycourt Cleaning Specialists (‘Derrycourt’) on 14 November 2022. The transfer date coincided with a relocation of the Central Mental Hospital from Dundrum to Portrane, Co. Dublin. The Complainant did not wish to avail of her right to transfer on the transfer date and engaged with the Respondent in relation to potential options to remain working with it as the journey times from the Complainant’s home to Portrane did not make her part-time hours economically viable. The Respondent was unable to identity a suitable alternative role for the Complainant. The Complainant ultimately commenced employment with the transferee in January 2023.

1. The Complaint

The Complainant alleges that the Respondent ceased paying her with effect from 14 November 2022 and, in particular, failed to pay her in lieu of notice.

The Complainant referred the within complaint to the Workplace Relations Commission on 28 June 2023, over seven months after the date on which the transfer occurred.

1. Evidence of Ms Katherine Kelly

The witness is the Director of Cleaning with the Respondent. She told the Court that she had overseen the transfer of staff from Dundrum to Portrane, a process she said that had been in train from February 2021 when the Respondent learned that it had been unsuccessful in re-tendering for the contract with the CMH. The witness said that the transfer was delayed until late 2022 because of Covid.

The witness then gave evidence in relation to a meeting she had held with cleaning staff in Dundrum on 20 October 2022. She said that she had been accompanied at the meeting by Ms Carol Ann O’Driscoll, Area Manager. The witness said that she informed the staff that the transfer would go ahead on 14 November 2022 and she explained the implications of the Transfer of Undertakings Regulations for them. She also told the employees, she said, that all their HR details had been passed to Derrycourt. The witness told the Court that the Complainant at no stage indicated that she did not understand what was being communicated to her and her colleagues at the meeting and in any event all staff had been aware of the imminent move of the CMH since 2021.

The witness told the Court that she did not promise to retain the Complainant in employment when the Complainant had indicated that it was not practicable for her to continue on a part-time basis with the transferee in circumstances where the location of the work moved from Dundrum to Portrane. The witness’s evidence is that she undertook to try and identify a suitable vacancy for the Complainant going forward, that three options were offered to her but that she declined to accept any of them.

1. Discussion and Decision

The Court found Ms Kelly to be a credible, coherent and convincing witness and accepts her account of events surrounding the transfer of undertakings that occurred between the Respondent and Derrycourt in November 2022. The Court also accepts that Ms Kelly did not make an unequivocal promise to retain the Complainant in the Respondent's employment notwithstanding the transfer of undertaking to Derrycourt, as alleged by the Complainant. Ms Kelly and her assistant made bona fide efforts to identify alternative roles which might have been suitable for the Complainant. However, none of the three possibilities identified suited the Complainant.

The fact that the Complainant chose not to transfer on 14 November 2022 to Derrycourt means that her employment with the Respondent ceased on that date by operation of law. An undertaking by Ms Kelly to try and identify a suitable role for the Complainant within the Respondent’s business, of itself, does not, in the Court’s view, negate the fact that the Complainant’s employment with the Respondent had ceased on 14 November 2022 as her job – if she had chosen to remain in it – had transferred to Derrycourt. In those circumstances no right to notice or payment in lieu of notice accrued to the Complainant.

As noted above, the Complainant referred the within complaint to the Workplace Relations Commission on 28 June 2023, over seven months after the date on which the transfer occurred. On the face of it, the complaint was, therefore, made out of time and no application was made to extend time.

It follows that the within claim under the Act is not well-founded. The appeal fails accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AM	______________________
27 January 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.