J Donoghue Beverages Ltd (Represented by Tiernan Lowey B.L. Instructed by Matheson Solicitors) v Charlene Murphy (Represented by Services Industrial Professional Technical Union)

 
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Labour Court (Ireland)

FULL RECOMMENDATION

TU/17/26

DETERMINATION NO.TUD185

ADJ-00002984 CA-00003964-002/007/009 CA-00003983-002/007/009

PARTIES:
J Donoghue Beverages Limited (Represented by Tiernan Lowey B.L. Instructed by Matheson Solicitors)
and
Charlene Murphy (Represented by Services Industrial Professional Technical Union)
SUBJECT:
1

1. Appeal Of Adjudication Officer Decision No: ADJ-00007813 CA-00003958-002/006/008 CA-000003989-002/006/008.

BACKGROUND:
2

2. The Worker appealed the Decisions of the Adjudication Officer to the Labour Court on the 25 September 2017. A Labour Court hearing took place on the 15 February 2018. The following is the Decision of the Court.

DETERMINATION:
3

This is Ms Murphy's (‘the Complainant’) appeal against a decision of an Adjudication Officer (bearing reference number ADJ-00007813) under the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 ( SI No. 131 of 2003) (‘the Regulations’). The Adjudication Officer's decision is dated 30 August 2017. The Notice of Appeal was received by the Court on 25 September 2017. The Court heard this appeal – along with two other related appeals: TU/17/25 and TU/17/27) – in Wexford on 15 February 2018.

4

At first instance, the Adjudication Officer held that he did not have jurisdiction to determine the complaints referred to him against J Donohoe Beverages Limited (In Receivership) (‘the Respondent’) under the Regulations. In so finding, he relied, in particular, on Regulation 4(1) of the Regulations. In those circumstances, the Adjudication Officer did not consider it necessary to determine the Complainant's substantive complaint that her former employer — the Respondent – had failed in its obligations pursuant to Regulation 8 of the Regulations to engage in a 30-day process of information and consultation with her chosen representatives prior to the transfer of her employment on 4 November 2015 to Knockton Limited T/A East Coast Suppliers Limited (‘the Transferee’). The Court, with the agreement of the Parties, proceeded in like manner on the appeal.

5

There is no dispute between the Parties as to the facts that are relevant to the sole issue before the Court. It is accepted that a transfer of undertakings within the meaning of the Regulations occurred on 4 November 2015, the effect of which was to transfer the Complainant's employment (along with that of her colleagues) which had hitherto been with the Respondent to the Transferee, by operation of law. It is also accepted that a Receiver was appointed over the Respondent's assets and undertakings on the date of the transfer.

The Law
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It is appropriate at this stage to set out in full the text of Regulation 4 and Regulation 8 of the Regulations.

7

Regulation 4 provides:

“4. Rights and obligations

(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 agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

(3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors'...

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