ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002042

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 04/05/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Preliminary Matter

 At the outset of the hearing the respondent submitted that the claim was out of time. It was the respondent's contention that the alleged contravention had been taking place since the start of the complainant's employment in March 2013 yet no complaint was made until 20^th January 2016, well outside the 6 months allowed by the Act for complaints to be made.

The substance of such an argument was subject of a previous case which in which a decision of the Employment Appeals Tribunal was appealed to the High Court in relation to a claim under the Payment of Wages Act. In the Health Service Executive v McDermott [2014] IEHC 331 a similar argument to the one outlined above was made by the HSE. In giving his judgement in this case, Mr. Justice Hogan found;

"For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time."

He upheld the EAT view that a cause of action arises with each and every contravention and that an employee has six months from every such contravention to make a claim against the employer. In this case the complaint relates to alleged contraventions which took place up to November 2015 with a complaint made on 20 January 2016 and as such the claim is not time barred.

Complainant’s Submission and Presentation:

The complainant commenced employment with the respondent, an employment agency, on 15 March 2013 and was assigned to a logistics company, working as a warehouse operative.   He worked a 37.5 hour week and was paid a gross amount of €324.38 per week, equating to an hourly rate of €8.65.

The complainant submitted that while he was an agency worker he did not receive the same basic working and employment conditions to which a comparable worker would be entitled, namely that he was paid a lower rate than a comparable direct employee; the complainant stated that while he was paid €8.65 per hour, direct employees doing the same work were paid €12.00 per hour.

The complainant presented a copy of his own pay slip which indicated that he had been paid an hourly rate of €8.65.

The complainant also presented a document which he claimed was a copy of a pay slip of a direct employee. The document, dating back to 2014, indicated that this employee was paid at a rate of €12.00 per hour.

His employment with the employment agency ceased on 6 November 2015 when he commenced working as a direct employee with the hiring company. His rate of pay on becoming a direct employee increased to €11.65 per hour, which, according to the complainant, indicates that there were different rates of pay for direct employees and agency workers.

Respondent’s Submission and Presentation:

The respondent agreed that the complainant was assigned by them to the hiring company in March 2013 and that he was paid an hourly rate of €8.65 while he worked there. The respondent submitted that it is their procedure to request certain information from clients regarding comparator payment details for temporary staff assigned to clients.

In this instance the client company did not furnish the agency with this information. The respondent "made all reasonable efforts" at the time to get the information from the client company, even going so far as to meet the client company face to face, however the client company did not co-operate, and without the comparator information the respondent stated that they were unable to do anything other than pay the contracted amount. The respondent stated that they had made their best efforts within the confines of the Act. The respondent provided copies of emails from the respondent to the client company requesting them to give the required information.

In response to the evidence submitted by the complainant, the respondent questioned the provenance of the document produced as a comparator's pay slip and drew attention to the fact that the complainant had no witnesses to support his assertions. The complainant also suggested that pay rates could be covered by a collective agreement and so could differ legitimately.

On questioning the respondent stated that when they met with the client company, the client company did not comment on the complainant's claim.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Legislation involved and requirements of legislation:

Section 6 of the Act provides: -

6. Section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

The meaning to be ascribed to the term ‘basic working and employment conditions’ is set out at Section 2 of the Act as follows: -

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hire, and that relate to—

(a) pay,

(b) working time,

(c) rest periods,

(d) rest breaks during the working day,

(e) night work,

(f) overtime,

(g) annual leave, or

(h) public holidays;

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 6, 11, 13(1), 14, 23 or 24 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer or hirer, as the case may be, to take a specified course of action (including reinstatement or reengagement of the employee or agency worker in circumstances where the employee or agency worker was dismissed by the employer or hirer), or

(c) require the employer or hirer, as the case may be, to pay to the employee or agency worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s or agency worker’s employment.]

Decision:

At the hearing the complainant submitted that his rate of pay was less than that of other employees directly employed by the hirer, that is, that he was paid less than he would have been had he been an employee of the hirer. To support this argument the complainant produced a pay slip which he proposed was that of a direct employee doing similar work; this document indicated that this employee was in receipt of a higher rate of pay than the complainant. However, without a witness to vouch for the veracity of this document it cannot be relied upon as evidence.   Indeed, even if the veracity of this document was not in question it would require an explanation as to the method of calculating the rate of pay as collective agreements might be in play.

The complainant also claimed that the fact that his rate of pay was increased on becoming a direct employee demonstrated that a different, less favourable, rate of pay existed for agency workers. However, the fact that his rate of pay increased when he was employed under a contract of employment with the hirer company, does not necessarily mean that this was a general rate of pay which applied across the board and as such should have applied to agency workers; the evidence is not sufficient in this instance.

From the evidence adduced by the respondent it is clear that they were not certain of what rate of pay was applicable to direct employees in the hiring company. If the respondent had been furnished with this information the matter could have been sorted out at local level some time ago. That such information was not forthcoming from the hirer, despite the efforts of the respondent, is unsatisfactory

On the evidence adduced I am forced to the conclusion that the complainant has failed to show, as a matter of probability, that he was paid a lesser rate of pay than was generally applicable for contracted employees carrying out similar work in the hiring company. In these circumstances his claim cannot succeed.

Dated:   29 July 2016