AWD161

Background:

The Complainant, Mr Eric McGrath, was employed on 14 March 2011, by Noel Recruitment,(the Respondent) an Employment Agency within the meaning of the Act. On 20 January 2012, he was assigned by the Agency to work for Glenbeigh Records Management, the Hirer, within the meaning of the Act. The Hirer was under contract to carry out work for University Hospital Waterford and posted the Complainant to work there. Initially the work involved the boxing of x-ray files for off-site storage. After a time however the Complainant was assigned to other work in the hospital and was supervised in his day to day activities by various members of hospital management rather than by employees of Glenbeigh Records Management. The Complainant discovered that directly employed comparable hospital employees were in receipt of superior pay and terms and conditions of employment and on 18 February 2015 he filed a complaint under the Act with the Labour Relations Commission. The matter came before the Rights Commissioner on 29 April 2015 and as the Claimant was not in attendance the matter was struck out. That decision was appealed to this Court under section 25(2) of the Act. The matter came on for hearing on 9 March 2016.

Position of the Parties:

Complainant’s Case

The Evidence

The Complainant gave evidence to the Court. He stated that he was employed by Noel Recruitment and assigned to work for Glenbeigh Records Management in University Hospital Waterford. He stated that he initially worked preparing old x-ray files for off-site storage. When that job came to an end he was assigned work elsewhere in the hospital. He said that this work involved preparing charts for clinics, answering emergency phones, working in the “hipe code” section and preparing health care records. He said that these duties were carried out by direct employees of the hospital who were paid a higher rate of pay and had superior terms and conditions of employment. He said that he was assigned to and supervised in the discharge of these tasks by hospital management and not by employees of Glenbeigh Records Management. He said he rarely met anyone from Glenbeigh Records Management after the work of boxing x-ray files came to an end. He said that he was included in standard departmental rosters to carry out this work and was integrated into the normal work of the hospital and supervised in the conduct of that work by hospital management.

Respondent’s Case

The Evidence

Ms Tracey Scott gave evidence to the Court. She said that she was employed by Noel Recruitment Ltd and managed the contract with Glenbeigh Records Management. She said that her records show that the Complainant was employed by Noel Recruitment Ltd and assigned to work for Glenbeigh Records Management. She said she was aware that the Complainant was assigned by that Company to work in University Hospital Waterford but that she was not familiar with the detail of his daily duties. She said that the day to day supervision of the Complainant was a matter for Glenbeigh Records Management. She said that she paid the Complainant based on advice she received from Glenbeigh Records Management. She said that the Complainant was at all times assigned to work for Glenbeigh Records Management and paid minimum wage for all hours worked. She said that she had been advised by Glenbeigh Records Management that all comparable employees in the company were paid the minimum wage.

Supplementary Submissions

Counsel for the Complainant submits that he was an agency worker within the meaning of the Act. He further submits that Noel Recruitment was his employer within the meaning of the Act and that University Hospital Waterford was for a period of time the hirer within the meaning of the Act. He submits that the Hospital supervised the Complainant, allocated his work and managed him in all material respects. He submits that the relationship between Glenbeigh Records Limited, the Hospital and Noel Recruitment was a legal device that if allowed to proceed, would have the effect of subverting the purpose and intent of the Act and of the Directive which it transposes into Irish law. He submits that this Court must look at the reality of the relationship between the hospital and Agency and conclude that the Hospital was the de facto hirer of the Complainant. He submits that the employer was responsible for ensuring that the Claimants pay and conditions of employment were equivalent to a directly employed comparable worker. He asks the Court to so find.

Counsel for the Respondent submits that it is an Agency within the meaning of the Act and that it had a commercial contract with Glenbeigh Records Management. She submits that the Act defines an agency and a hirer and the obligations that each has to the other and to the Complainant. In this case the Complainant was employed by the Agency and assigned to the Company that it believes to be the legal hirer. The hirer assigned work to the Complainant and notified the Agency of the hours he worked and of the rates of pay applicable to comparable employees. She states that the hirer so notified it and that the Complainant has made out no case that direct employees of Glenbeigh Records Limited were in receipt of superior terms and conditions of employment. She submits that there was no legal relationship between the Agency and the Hospital and accordingly the terms of the Act did not apply as between the Complainant and hospital workers alongside whom he may have worked.

Findings of the Court

The Court has examined the extensive written and oral submissions of the parties together with the oral evidence of the two witnesses that appeared before it.

Having done so, the Court finds that the Complainant is an “agency worker” and that Noel Recruitment Limited is an Employment Agency within the meaning of section 2 of the Act. The Court further finds that Glenbeigh Records Limited is a hirer within the meaning of section 2 of the Act. That much is not in dispute between the parties.

Is University Hospital Waterford a hirer within the meaning of the Act.

The issue that arises for decision in this case is whether University Hospital Waterford is the hirer of the Complainant within the relevant statutory period.

To answer this question the Court must look at the terms of the Act and of the Directive which the Act transposes into Irish law.

The Headnote of the Act describes it as

“AN ACT TO GIVE EFFECT TO DIRECTIVE 2008/104/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 19 NOVEMBER 2008¹ON TEMPORARY AGENCY WORK; FOR THAT PURPOSE TO AMEND CERTAIN ENACTMENTS; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH.”

Article 3 of the Directive defines “user undertaking” as

(d) ‘user undertaking’ means any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily;

Section 2 of the Act defines hirer as

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

It appears to the Court that Section 2 of the Act seeks to give effect to Article 3(2) of the Directive and substitutes the term “hirer” for the term “user undertaking” in the Directive..

In doing so it appears to envisage two categories of persons that may be considered a hirer. The first category is a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first mentioned person. The second person that may be considered a hirer appears to be someone who is not the first person but who is “any other person”.

In this case the Agency employed the Complainant and assigned him to work for Glenbeigh Records Management which deployed him to fulfil the terms of a contract it had entered with University Hospital Waterford to prepare old x-ray files for off-site storage. That appears to have been a straight forward assignment for which the Complainant accepts he was properly remunerated. The Complainant was at that time directed and supervised on a day to day basis by Glenbeigh Records Management.

However when the work associated with that contract ended the Complainant was then assigned duties in the hospital and Glenbeigh Records Management ceased to have any day to day contact with him. He was integrated into the staffing structure, duties and rosters of the clerical staff of the hospital and supervised and directed in that work on a day to day basis by hospital management. Whereas Glenbeigh Records Management were the end user of the Complainant’s labour while he worked in the x-ray department, the hospital became the end user of his labour thereafter and Glenbeigh Records Management ceased day to day engagement with him. The legal agreement in respect of the Complainant between Glenbeigh Records Management and the Respondent continued but because of the manner in which he was deployed after the work of boxing x ray files came to an end, the hospital became, what is described in the Directive as, the “user undertaking” or the “other person” envisaged in the Act. Day to day supervision and direction passed from Glenbeigh Records Management to University Hospital Waterford and the right of the Complainant to no less favourable terms and conditions of employment than comparable direct employees of the hospital was triggered. The Agency at that point had an obligation under the Act to ensure that the Complainant was properly paid in accordance with the Act and in this case it failed to do so.

The Agency submits that such an interpretation of the Act would place it in a very difficult position as it had a legal agreement with Glenbeigh Records Management to supply the Complainant to work for it and had no legal agreement with the Hospital. It further submits that it had no knowledge of the day to day deployment of the Complainant by Glenbeigh. It submits that it is entitled to rely on its legal agreement with Glenbeigh and cannot be held liable for events of which it was not advised and of which it had no knowledge. It submits that no one advised it at any point that the Complainant was no longer under the day to day supervision and direction of Glenbeigh but rather was working for and under the direction of hospital management.

The Court notes the difficulties outlined by the Respondent but does not accept them as a valid basis on which to defeat the Complainants entitlements under the Act. The Act is designed to protect the Complainant’s right to no less favourable terms and conditions of employment than comparable workers in the user undertaking. The Complainant is an employee of the Agency. Accordingly it is a matter for the Agency to be aware of the deployment of its own employees so as to ensure that they receive their entitlements under the Act. Those rights and entitlements which are founded in the Directive cannot be compromised by the failure of the Agency to make itself aware of the manner in which its client was deploying the Complainant. Such ignorance could not defeat the Complainant’s rights under the Act as to so decide would render the Directive nugatory and ineffective.

Not withstanding the difficulties outlined by the Respondent, the Court must decide the matters before it in accordance with the provisions of the Act in the context of the Directive. It is a matter for the Agency to maintain effective knowledge of the deployment of its own employees.

The Respondent submits that having a legal agreement with Glenbeigh and being unaware of the day to day deployment of the Complainant it was not in a position and had no reason to approach the Hospital to determine the proper terms and conditions of employment that should have been afforded to the Complainant. It further submits that the Hospital is not a party to the proceedings and cannot be compelled by it to give evidence to the Court. It submits that the Court has that power and asked it to consider using it in this case.

The Court notes that Section 25(1) of the Act states

• 
  1.(1) (a) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee’s employer has contravenedsection 6,13(1)or23in relation to the employee and, upon the presentation of such a complaint, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint.

No evidence was presented to the Court that the Respondent requested either the Hospital or Glenbeigh Records Management to attend at the hearing and to give evidence. Accordingly a witness summons does not arise in this case. The correct parties have been notified and afforded the opportunity to be heard before the Court decides on the matters before it.

The uncontroverted evidence before the Court is that the Complainant carried out work for the Hospital for which a directly employed worker would have been remunerated as a Grade 111 employee. In his submission to the Court the Complainant states that he was paid €4968 per annum less than that amount for each year during which he was employed by the Respondent. He seeks arrears in the sum of €19,847.40 in respect of the shortfall in income he suffered over the course of his employment and any additional sum the Court considers just and fair.

The Respondent did not make any submissions to the Court on this point.

Determination

Having considered all of the evidence before it the Court determines that the complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €25,000 which is inclusive of the aforesaid sum of €19,847.40 in respect of the Complainant's economic loss of income during the period concerned.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
18th May 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.