Case Number: ADJ-00017510. Workplace Relations Commission.

• Docket Number: ADJ-00017510
• Hearing Date: 11 December 2018
• Date: 01 February 2019
• Court: Workplace Relations Commission
• Parties: a Truck Driver v A Transport Company

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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 claims that he commenced his employment with Company ABC as a driver in or around 5th August 2016. He claims that a transfer of undertakings took place on 5th February 2018 and as a result he began working for the Respondent on that date. The Complainant claims that he ceased his employment on 24th April 2018. On 16th October 2018 the Complainant referred his complaints to the WRC claiming that he had to leave his job due to the conduct of the Respondent, that he did not get his weekly rest periods and that the Respondent has not paid him or paid him less than the amount due. The Adjudication hearing took place on the 11th December 2018. Additional submissions were received from the parties on 12th and 19th of December 2018.

CA-00022631-001 - Section 8 of the Unfair Dismissals Act, 1977 Preliminary issue: Transfer of Undertakings and application of the Act Summary of Respondent’s Case:

The Respondent submitted as a preliminary matter that the Complainant does not have the necessary locus standi to pursue a claim under the Act, as he is precluded by virtue of Section 2(1)(a). The Respondent argues that the Complainant commenced his employment with the Respondent on 12th February 2018 and terminated his employment by mutual agreement on 24th April 2018. Therefore, the Complainant does not have the service to qualify for taking claims under the Unfair Dismissals Act. The Respondent rejects the assertion that a transfer had taken place within the meaning of the Regulations. The Respondent submits that the Complainant commenced employment with the Respondent on 12th February 2018 as a truck driver. The Respondent submits that prior to this the Complainant had worked with Company ABC. The Respondent submits that this business is still undergoing the process of closure, with the business owner taking up a manager role within the Respondent. The Respondent submits that all 66 employees of ABC were made redundant and those entitled to a redundancy payment received this. The Respondent exhibited a copy of communication issued by the appointed Liquidator to the Complainant dated 5th March 2018 in that regard. The Respondent submits that the drivers of ABC were informed that there were opportunities within the Respondent’s company that they could express an interest in. The Respondent claims that the Complainant did this and assumed a role as a driver. The Respondent submits that there was no transfer of assets or employees and the ABC depot was closed. Mr D (formerly of ABC) attended the hearing and confirmed that he had secured employment with the Respondent. He also stated that the Liquidator dealt with the redundancies and other entitlements of all employees of ABC. He noted that he helped some 20 employees of ABC to secure employment with the Respondent (10-11 have left since). He stressed that the employees of ABC moved to 5-6 different companies. Mr D clarified also that the trucks went back to the leasing company and assets are being sold off and no assets were transferred to the Respondent.

Summary of Complainant’s Case:

The Complainant claims that there was a transfer of undertakings between the company ABC and the Respondent on 2nd February 2018 and he started working with the Respondent on 5th February 2018. The Complainant submits that there are two requirements which must be met, firstly there must be a change in the identity of the natural or legal person operating the economic entity and secondly, the economic entity itself must retain its identity. Counsel for the Complainant cited Daddy’s Dance Hall A/S [1988] I.R.L.R 315. Further, the Complainant submits that there is no need for there to be a direct contractual relationship between the transferrer and the transferee (Redmond Stichting v Bartol [1992] I.R.L.R. 336). Further, the Complainant relies on O’Toole v MMO2 Ltd. (UD326/2002) that moving an employee from one associated company to another will not necessarily amount to a transfer. The Complainant submits that ABC and the Respondent were not associated companies. The Complainant argues that the employees of ABC were transferred to the Respondent on 2nd February 2018 by way of a meeting on the same date. The Complainant maintains that he and majority of the employees of ABC transferred to the Respondent. The Complainant submits that he was told by Mr D that he should attend a meeting with the Respondent in its office. The Complainant claims that he did attend said meeting with the Respondent, Mr D and several other drivers where he was informed that the Respondent would be taking on the Complainant, and other drivers, as employees. The Complainant claims that he started working for the Respondent on 5th February 2018. The Complainant submits that he was available for work but as a result of the Respondent not providing the Complainant with a truck he was unable to work. The Complainant submits that he was first given a truck to drive by the Respondent on 12th February 2018, The Complainant also cited the case Spejkers [1986] 2 CMLR where the ECJ held that all factual circumstances of the transaction must be taken into consideration. The Complainant submits that the Respondent provides a haulage service and after 2nd February 2018 the majority of ABC’s customers became customers of the Respondent. The Complainant claims that he carried out identical duties for ABC and the Respondent and the interruption in activities was minimal due to the unavailability of a truck which would be provided by the Respondent. In all the above circumstances the Complainant maintains that there was a transfer of undertakings. The Complainant argues that in the High Court case of Mythen v The Employment Appeals Tribunal [1990] E.L.R. 1 it was held that the Complainant can fix the liability with either the transferrer or the transferee. The Complainant also cited Section 4 of the Regulations. The Complainant maintains that the Respondent is liable for the claims as set out against ABC and the transfer of the Complainant’s rights is automatic.

Findings and Conclusions:

The preliminary issue to be decided is whether or not the transfer of the Complainant’s employment from ABC to the Respondent was such as to be covered by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The law in this area is covered by the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003, S.I. No.131/2003 and the relevant provisions of Directive 77/187/EEC together with the case law arising. The relevant sections of S.I.131/2003 are as follows: Regulation 3 (1)“These Regulations shall apply to any transfer of undertaking, business, or part of an undertaking or business from one employ as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. (2)Subject to this Regulation, in these Regulations- “ transfer” means the transfer of an economic entity which retains its identity; “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity. (3) These Regulations apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.” Regulation 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. (2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that...