ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006951
Parties:
| Complainant | Respondent |
Anonymised Parties | A Health Care Worker | Health Care Service Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00009390-001 | 30/01/2017 |
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Date of Adjudication Hearing: 08/05/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and the Protection of Employees (Temporary Agency Work) Act 2012, 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 Matters
Summary of Complainant’s Case:
The claimant has been employed as a Health Care Worker by the respondent since May 2014 – and was assigned as an agency worker to a health services institution from Nov. 2014 to August 2016.It was submitted that the claimant was removed from this position on the basis of unproven allegations made against her by her work colleagues.It was submitted that no investigation took place and that consequently the claimant had no opportunity to clear her name- with the potential for a negative impact upon her career and her earnings.The union set out a chronology of the events and exchanges that took place between the agency , the hirer and the claimant prior to her removal from this particular institution. It was submitted that the claimant carried out the same or similar work to others employed directly by the hirer and that the hirer has procedures in place governing the procedures that must apply when a complaint is made against a staff member.It was submitted that as the claimant was denied the entitlement to the same working conditions as the directly hired staff in so far as she was denied the protection of the hirer’s procedures – that consequently the respondent was in breach of Section 6 of the Act. It was submitted that the claimant was seeking to have her complaints /grievances independently investigated in an open and transparent fashion under agreed Terms of Reference. |
Summary of Respondent’s Case:
It was submitted by the respondent that the issue of investigating a grievance against a third party hirer was not actionable under the Act.It was advanced that Section 6 entitles the claimant to the same basic working conditions to which she would be entitled if she were employed by the hirer to perform the same work she performs under her contract of employment with the respondent. The respondent advanced that the Act proscribes the terms and conditions actionable in narrow terms ; that if the legislature intended to include grievance procedures they would have done so within the definition of terms and conditions and had not done so.It was submitted that in light of the foregoing , an alleged failure to investigate a grievance against a third party hirer is not actionable under the Act . |
Decision:
Section 41 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.
[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented at the hearing and accept the respondent’s contention that the definition of basic working and employment conditions are defined in a closed list under Section 2 and that the list cannot be expanded to include grievance/procedures .Consequently , I find against the claimant and do not uphold the complaint.
Dated: 21/07/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea