A supervisor who said she was caught between PepsiCo and its former cleaning contractor in a dispute over a factory audit has won €22,000 for rights breaches after the new service provider failed to give her work because she had been banned from site.
Edel Kelly secured the compensation after the Workplace Relations Commission (WRC) ruled that Bidvest Noonan (ROI) Ltd breached her right to continue in employment when it won a cleaning contract from her ex-employer, Mount Charles Group Ltd.
Kelly had brought statutory complaints against both PepsiCo’s Irish arm and Bidvest Noonan after being left jobless in July 2025 as the only employee of Mount Charles at the Pepsi concentrate plant in Carrigaline, Co Cork, who did not transfer to Noonan’s.
The tribunal heard that Kelly was in charge of a team of seven cleaners there until she was handed a site ban by Pepsi management in April 2025. Having been investigated and given a verbal warning by Mount Charles, Kelly remained on full pay with no work until the transfer later that summer.
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At a hearing last month into a separate claim against PepsiCo’s Irish arm, Portfolio Concentrate Solutions UC, Kelly said the multinational had brought about a “third-party dismissal” by imposing the site ban.
The multinational argued Kelly had no standing to pursue that claim, as she had agreed that she was not a Pepsi employee.
Her evidence was that towards the end of Mount Charles’ time on site, she was caught in the middle of a dispute over cleaning services between her employer and the soft drinks maker.
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With a PepsiCo audit of the facility looming in early 2025, there was a request from the factory management to clean a plant room, which Kelly said “wasn’t on our scope of work to do”.
“They were facing an audit and there was flies there. I went in, against my better judgment because my manager at Mount Charles had told me not to because it wasn’t on our scope of works,” she said.
“We went in and we did it, and unfortunately there was a staircase missed and there was flies left there, which I wasn’t aware of on the day,” she said.
“There was an audit by Pepsi and apparently, the audit was either failed or there was some dispute about the audit – it was never clarified to me.
“This is the reason I was put off site and site banned, which I found highly unjustified,” she said.
Kelly said Mount Charles decided she had committed a “misdemeanour” warranting a verbal warning. “As far as they were concerned, that was the end of it,” she said.
In the separate proceedings against Bidvest Noonan, Kelly said she had been out of work since the site ban on April 2nd, 2025. An email on May 20th that year welcoming her to Noonan’s was the “first and last time” she heard from them, she told adjudicator Tom O’Driscoll.
Bidvest Noonan’s stance was that the site ban meant Kelly was not assigned to the contract when it transferred over, and argued that any responsibility for Kelly’s employment rested with Mount Charles.
A company witness, Linda Connolly, said it had been “repeatedly communicated” to the former contractor that Kelly was “not eligible to transfer” and that redundancy or redeployment should have been addressed by Mount Charles.
O’Driscoll rejected that argument, noting a higher court ruling that the “decisive criterion” for the purposes of the transfer-of-undertakings regulations was “the existence of an employment relationship at the date of the transfer”.
“The fact that an employee is absent from work or temporarily unable to perform duties at that moment does not, of itself, exclude that employee from the scope of the directive,” he wrote.
He added that the Court of Justice of the European Union had made it clear that a worker’s rights under the transfer of undertakings directive “cannot be defeated by the organisational or operational imperatives” of the company that took over.
He found that Kelly was still assigned to the contract when it transferred – but that she was not consulted on the transfer and was dismissed as a result of the contract changing hands.
This was in breach of Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, he found.
He awarded her seven months’ pay in compensation in relation to the dismissal, and a further four weeks’ pay for the failure to consult – €22,315 in all.
