ADJ-00008493

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00008493

Parties:

Complaints:

Date of Adjudication Hearing: 06/09/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

PRELIMINARY ISSUE – IS THE NAMED RESPONDENT THE EMPLOYER.

The Complainant is employed on a contract of employment with a named Employer, being an Une4mployed Centre. The Complainant lodged a complaint under the Payment of Wages Act, 1991 – 2015 and a further complaint under the Organisation of Working Time Act, 1997 – 2015 alleging the named Respondent in these complaints had breached both Acts.

The first issue to be determined is whether the named Respondent – a Government Department – is an Employer of the Complainant for the purposes of these complaints. This issue was addressed by the High Court in its Decision of 31^st May 2017 in the case of Tonya Martin and The Minister for Social Protection. (2017) IEHC 361. Mr Justice Binchy concluded in his Judgement as follows: I am satisfied beyond any doubt that the decision that the applicant impugns in these proceedings is a decision taken by the Partnership and not by the Respondent, and it is not a decision for which the respondent is in any way liable. While the respondent established and funded the Scheme, the responsibility for the administration of the Scheme, insofar as it concerns matters relating to the employment of the applicant, rested entirely with the Partnership and not with the respondent. That is clear from both the terms of the TUS implementation agreement, and the TUS community workplace initiative, conditions and rules. The applicant’s employment was governed by the contract of employment which she entered into with the Partnership and not the respondent.

The established facts of these complaints are that the Complainant entered into a Contract of Employment as a Community Employment Assistant Supervisor with an Unemployed Centre. The Complainant did not have a Contract of Employment with the named Respondent a Government Department, who funded the Scheme.

I DECIDE I DO NOT HAVE JURISDICTION TO HEAR THESE COMPLAINTS CA-00011119—001 CA-00011114-001 – CA -00011114-002 – ca-00011114-003 AS THE NAMED RESPONDENT IN THESE COMPLAINTS IS NOT THE EMPLOYER OF THE COMPLAINANT.

Dated:   7/12/17

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words: