Case Number: TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014. Employment Appeals Tribunal

• Judgment Date: 01 March 2016
• Year: 2016
• Docket Number: TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APEALS TRIBUNAL

APPEALS OF : CASE NOS.

David Mythen TU31/14

- Appellant no. 1

Thomas Sadlier TU32/14

- Appellant No. 2

Bartosz Baziuk TU33/14

- Appellant No. 3

John Nicholson TU34/14

- Appellant No. 4

Paddy Dowling TU35/14

- Appellant No. 5

against the Decisions of the Rights Commissioner in the case of :

Top Security Limited

- Respondent

under

PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr. C. Corcoran B.L.

Members: Mr. D. Peakin.

Mr. F. Keoghan

heard these appeals at Dublin on the 8^th of September 2015 and 26^th of January 2016.

Representation:

Appellant: Mr. Hugh Hegarty, SIPTU, Liberty Hall, Eden Quay, Dublin 1.

Respondent: Mr. John Barry, Management Support Services, The Courtyard, Hill Street,

Dublin 1

The decision of the Tribunal was as follows-

These appeals came by of way of the appellants (employees) appealing against the decisions of the Rights Commissioner ref. r-138387-tu-13, r-138388-tu-13, r-138389-tu-13, r-138391-tu-13, r-138612-tu-13.

DETERMINATION:

The Appellants were employed as security officers at the CSSO Office, (CSSO) with company M at two different locations. Subsequently at a later stage this entity was taken over by the respondent. On the 19^th of July the Appellants were notified by letter that the contract with the client would be terminated on the 25^th of August 2013, and that the respondent had been awarded the contract. The letter further stated that the client (CSSO) had confirmed that the Regulations surrounding the Transfer of Undertakings for the Protection of Employees (TUPE) would apply and the Appellants were requested to sign an attached form and return same to their offices before the 26^th of July 2013. Further correspondence on this matter was sent to GD, General Manager of the respondent company invoking the TUPE Regulations were unanswered. It was stated by the Appellants that attempts to contact the respondent were unsuccessful and they were replaced on the above-mentioned termination date. In the absence of engagement the Appellants maintained that they were caught between two employers, and in a limbo situation.

Appellant No. 1 secured alternative employment six weeks after the termination of his employment.

Appellant No 2 secured alternative employment two weeks after the termination of his employment.

Appellant No. 3 secured alternative employment ten weeks after the termination of his employment.

Appellant No. 4 secured alternative employment nine weeks after the termination of his employment.

Appellant No. 5 secured alternative employment eight weeks after the termination of his employment.

The Respondent on the other hand denied that there was any arrangement that TUPE Regulations would apply in this case. They stated that even though the number involved was small, vis-à-vis the number employed by their company, and the work carried on was practically the same as they had been doing over the years, they were always reluctant to take on new employees in a situation such as this, since their own existing employees were specially trained by their own company. Nevertheless when asked (given the small number of employees involved) whether a re-training or a training course could be conducted, they responded that this was not an option. They did agree in evidence that a workforce and/or goodwill could amount to intangible assets, and by implication amount to a transfer of intangible assets.

The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 together with (as already stated) diverse, varied unwieldly and at times contradictory case law. At the outset it seems clear to the Tribunal that while the case law is diverse, varied, unwieldly, and at times contradictory,(as already stated), it follows as a matter of course that one overriding principle is very clear namely that each case is more or less decided on its own unique facts. This case is no exception.

The pertinent relevant sections in S.I. 131 are as follows:

Regulation 3/

“(1) These Regulations shall apply to any transfer of undertaking, business,

or part of anundertaking or business from one employer 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 group of resources which has the objective of pursuing an economic activity whether or not that activity is for a profit or whether it is central or ancillary to another economic or administrative entity.”

(3) These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.” (Italics inserted)

“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 under in any collective agreement on the same terms applicable to the transferor that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.” (Italics inserted).

Having listened to the evidence both written and oral from both parties and having observed the demeanour of the witnesses, and having regard to the wide, varied, unwieldy and at times contradictory nature of the law in this area (as stated) the Tribunal

is of the view that the service involved was an “economic entity” and...