Case Number: ADJ 00000578. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ 00000578
Date05 January 2017
PartiesA Worker v An Employer
Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Claimant commenced employment with the school on I September 2009. In March 2014, they entered into a contract with a cleaning company and two employees including the Claimant transferred to the cleaning company in line with TUPE legislation.

In June 2015, the Claimant received a letter from employer, the cleaning company informing her that her employment would transfer back to her first employer the school in line with TUPE legislation and she was issued with her P45. When she contacted the school she was told that she would have to attend an interview. She was unsuccessful in her interview. They denied that any transfer under TUPE to place.

She also denies that the cleaning company offered her suitable alternative employment.

Respondent’s Submission and Presentation:

The school submitted that the onus is on the Claimant to show that the TUPE Regulations are applicable. It is submitted that there is no evidence whatsoever that such are applicable. In fact the evidence suggests that the cleaning company were her last employer. Therefore the complaint is misconceived.

The school’s position is supported through the correspondence in the matter, the holding of an open competition, the fact that the Claimant was paid by the cleaning company and the fact that no ‘resources’ whatsoever transferred between it and the cleaning company which could conceivably draw the conclusion that the TUPE Regulation apply. In addition, the school’s position is clearly supported by European and national case law in the area which firstly establishes that the transfer of undertaking provisions are not applicable in the context of a specific works contract, and secondly, where no actual transfer of resources occurred.

The cleaning company submitted that they took the contract from the school under the TUPE Regulation and under their instruction accepted all the staff under this legislation. In June 2015 they terminated the contract and clarified that they would be the new employer...

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