Employment: Transfer of Undertakings/Unfair Dismissal - Case Study 2016

By nclcadmin, Monday, 1st February 2016 | 0 comments
Filed under: Employment, Case Studies 2016.

Background

The client attended Community Law and Mediation’s advice clinic in relation to her dismissal from her employment. She had been working as a cleaner in the same premises for almost 10 years under different management from various companies. Whenever the company managing the cleaning of the premises changed, the client’s employment would be transferred to the new company. After one such
transfer in 2010, the client was not kept on as an employee. This was surprising to the client as she was told by her previous employer that her employment rights and position would be transferred to the new contracting company. However, the new company informed her that they would not be taking on employees of the previous company and had no obligation to do so.

CLM Northside’s Input

A hearing was scheduled for August 2014 in relation to the breach of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. These guarantee that in a situation such as that of the client’s, an employee is to be transferred to the company taking over the role of their previous employer. If the employee is not transferred, he/she is entitled to redundancy. The client also brought claims for unfair dismissal and unfair selection for redundancy on the grounds of race, contrary to the Unfair Dismissals Acts.

This hearing was adjourned, however, because the other side allegedly received no correspondence relating to the hearing. Another hearing was scheduled for October 2014, but this was also adjourned for similar reasons. In May 2015, CLM made a request for another hearing and received no reply until December 2015. A hearing was re-scheduled for January 2016. Again, the other party sought a
postponement of this hearing due to “exceptional circumstances” and this was granted. CLM and the client were not informed of this until they arrived at the Workplace Relations Commission on the day of the hearing. By now, there was a concern that the client’s right to a public hearing in reasonable time under Article 6 of the European Convention on Human Rights was being infringed due to the excessive delay. The matter was finally heard in February 2016

Impact

The claim for unfair dismissal succeeded and the client was awarded €8,000 in compensation for her lost employment. Although there were possible grounds for appeal in relation to the amount of the award, the client was keen to conclude the matter after six years of dispute. This case underlines the importance of having access to an effective remedy. Excessive delay serves to demoralise a client and damages confidence in the mechanism for enforcing a person’s employment rights.

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