The complainant commenced work as a security officer in 2007, initially with another company. In July 2020, he was transferred to the Respondent company. The Complainant brought two complaints: one under the Payment of Wages Act, 1991 and the other under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, (the TUPE Regulations).

The complaint submitted under the Payment of Wages Act that he had his wages unlawfully deducted, which specifically breached Section 4(2) of the TUPE regulations by failing to honour the Complainant’s terms and conditions regarding a site allowance. The complainant had been in receipt of a fortnightly payment of €42.12 for 14 years and it was clearly part of his terms and conditions of employment.

Despite attempts by the union to contact the Respondent by letter, phone, and e-mail over four months, the company did not reply. On January 15th, 2021, the matter was referred to the WRC.

The employer made no submission at the hearing and did not contest the case put forward by the Complainant.

A decision was issued on the 19th of October whereby the Complainant was awarded compensation for the lack of consultation and for breach of his terms of his conditions on the transfer and was also awarded compensation under the Payment of Wages Act.

To date, this decision has not been implemented by the employer and is currently in the process of referral for enforcement. A second case was submitted on July 12th, 2021, and a further case was submitted in June 2022.

The Complainant resigned from his employment due to the failure of his employer to pay him correctly.

The Respondent did not attend the hearing and no explanation was received for its failure to attend.  The Adjudication Officer said the Respondent appear to be indifferent, or at worst, disrespectful, to their legal obligations and for the decision of the WRC.

An award under the Payment of Wages Act of €547.56 was made in relation to the payment which should have continued after the TUPE transfer.

In relation to the second complaint relating to the TUPE Regulations, the Adjudication Officer stated: “The evidence and submissions in the case indicate a degree of wilful disregard for the law that, in my opinion, triggers the ‘Von Colson’ principles and the necessity for a dissuasive award of compensation.”

The Adjudication Officer decided to make an award to the Complainant of €8,000 - equivalent to approximately four months’ remuneration.

Guidance for Employers

Regulation 4 of the TUPE regulations states ‘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’.

The ‘Von Colson’ decision states where a right grounded in European law has been infringed the judicial redress provided should not only compensate for economic loss but must provide a real deterrent against future infractions. To ensure it is effective and has a deterrent effect, compensation must be adequate in relation to the damage sustained and must amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application.

It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.

The full decision is available here:
https://www.workplacerelations.ie/en/cases/2022/july/adj-00034472.html