Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2796/04

APPLICANT: Maureen Patricia Smyth

RESPONDENT: Maybin Support Services (NI) Ltd

DECISION

The unanimous decision of the tribunal is that the applicant has failed to discharge the burden of proof to satisfy the tribunal that she worked at Larne Railway Station for Cape Industrial Services Limited before 5 September 2004, and therefore is entitled to the benefit of the Transfer of Undertakings (Protection of Employment) Regulations 1981 against the respondent. Accordingly, the tribunal dismisses the Originating Application in its entirety.

Appearances:

The applicant did not appear and was not represented.

The respondent was represented by Ms P Rooney Solicitor of Carson McDowell, Solicitors.

Summary Reasons

Pursuant to Rule 12(4) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004, these reasons are given in summary form.

The Contentions of the Parties

1. By her Originating Application, presented on 14 October 2004, the applicant claimed that she had been unfairly dismissed on 5 September 2004. At section 13 of the Originating Application, the applicant claimed:

"I have worked for Cape Industrial Services on two sites – F G Wilson and Larne Harbour Train Station. In July of this year, Cape lost their contract with Larne Harbour and Maybin Support Services took over the contract from 5 September 2004. When I found out Maybin was advertising the job I had been doing part-time on a Friday and Saturday night, I contacted them and told of this. I was told to apply for the job by someone called Marian, and this would be just a formality. I received my application form, filled it in and posted it on 30 July 2004 by first class post. The closing date was 4 August 2004. I received a response on 14 August, stating that my application had arrived on 12 August and that closing date was 4 August. This would mean that my application took two weeks to go from Larne to Ballymena. I then rang Labour Relations and informed them of what had happened, and was informed that the job was legally mine. I was told to ring Maybin and inform them of this. I made the call to Maybin and informed them of this information and was put through to David Ferguson whom I spoke to and he informed me that he was unsure of the legislation and he would get back to me on this …

I spoke to David Ferguson again on 10 September as I was informed to by a solicitor and Labour Relations. Mr Ferguson said this in his own words; "to go down to the harbour. There was no job for you". And they had their own board of solicitors and go ahead to the Industrial Tribunal, and slammed the phone down as I was speaking.

The part-time job was of great benefit to me and any bonus I received from it was in form of all holidays, Christmas, New Year, Easter, and July fortnight as well as any sick days or floaters that the full time person received".

2. The respondent presented a Notice of Appearance on 29 October 2004, which at section 4 denied that the applicant had been dismissed. At section 7 of the Notice of Appearance, the respondent asserted it had acquired the contract for Larne Harbour Train Station from Cape Industrial Services Limited, and contended that since the applicant carried out the majority of her contract of employment with Cape Industrial Services Ltd at the F G Wilson site, she did not transfer to the employment of the respondent when it acquired the contract at Larne Harbour Train Station. Thus, the respondent contended that the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("the TUPE Regulations") did not apply to the applicant.

The Tribunal Found the Following Facts

3. The tribunal heard evidence from Mr David Ferguson, who is the Divisional Manager for the respondent. We find that prior to 5 September 2004, Cape Industrial Services Limited had cleaned trains for Northern Ireland Railways. Cape Industrial Services Limited had two depots (Bangor and Coleraine). The respondent had commenced a tendering process with Northern Ireland Railways in September 2003. This involved the respondent getting details from Cape Industrial Services Limited on the total number of operatives it employed and the number of hours these operatives worked. This information showed that Cape had five operatives working across three sites (Bangor, Coleraine and Larne). The information did not disclose the names of the operatives, but did disclose dates of birth. None of these dates of birth match that of the applicant, as given on her Originating Application, viz: 27 November 1955.
4. On 12 August 2004, the respondent received a job application form from the applicant seeking work as a train cleaning operative. However, this form was received after the deadline for applications had expired on 4 August 2004. The applicant had contacted Mr Ferguson on 24 August 2004 to enquire as to the job she felt entitled to at Larne station. During this conversation, the applicant told Mr Ferguson that she worked at the F G Wilson site full-time for thirty nine hours per week, and worked at Larne Station on a Friday and Saturday night. Mr Ferguson telephoned the applicant, and also wrote to her, on 26 August 2004 informing her that since it appeared she spent less than fifty per cent of her working time working at Larne Station, the TUPE Regulations did not apply and therefore she had no automatic right to transfer to work for the respondent. The respondent did not employ any of the operatives who had previously worked for Cape Industrial Services Limited at Larne, although it did employ Cape operatives who had been employed at Bangor and Coleraine. Mr Ferguson did not speak to the applicant at any time after 26 August 2004.

The Decision of the Tribunal

5. The tribunal has considered the Originating Application, Notice of Appearance, all the evidence before it, and the submissions made by the respondent. The tribunal makes the following decision on foot of the Findings of Fact above.
6. By a unanimous decision, the tribunal makes the following decision:

A. Since the respondent contends that it did not dismiss the applicant, the burden of proof lies on the applicant to establish that she was dismissed by the respondent.

B. The applicant did not give evidence, was not represented and made no written submissions before us. We wish to stress that the tribunal considered the applicant's Originating Application in its entirety, pursuant to Rule 11(3) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004. The tribunal determines there is no evidence that would support a determination that the applicant ever worked at Larne Station on Friday and Saturday nights. Of the information received by the respondent about Cape operatives, before 5 September 2004, none of the dates of birth corresponded with that of the applicant. Moreover, on 24 August 2004 the applicant had informed Mr Ferguson that she worked full-time at the F G Wilson site.

C. Accordingly, the tribunal determines that the applicant has failed to discharge the burden of proof as to the number of hours (if any) she worked at the Larne Station site for Cape Industrial Services Limited. Therefore, we cannot determine the applicant is entitled to the benefit of the TUPE Regulations against the respondent. The tribunal applied Botzen –v- Rotterdamsche Droogdok Maatschappij BV (1985) ECR 519, ECJ and Duncan Webb Offset (Maidstone) Ltd –v- Cooper [1995] IRLR 633, EAT.

D. The tribunal therefore dismisses the applicant's complaint in its entirety.

E. No further or other Order is made.

Chairman:

Date and place of hearing: 9 February 2005, Belfast.

Date decision recorded in register and issued to parties: