Complainant

Respondent

Anonymised Parties

An employee

An employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00009020-001

11/Jan/201711/Jan/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009020-002

11/Jan/201711/Jan/2017

The respondent was contracted by a public sector agency to carry out certain functions on its behalf relating to the role of a permanent member of staff seconded to another role.  The respondent organisation employed the complainant on fixed term contracts.  The complainant contends that the public sector body was the actual employer. 

On 5th Nov 2013 the respondent was contacted by a public sector organisation advising that one of their employees was taking up a national post and that due to the embargo on recruitment they could not replace her but could fund the replacement through the respondent  A recruitment process took place with the involvement of the public sector organisation both in shortlisting and on the selection board.  The complainant was successful and provided with a fixed term contract commencing on 3 Feb 2014 for 12 months.  The contract specified that she would be located on a premises belonging to the public sector organisation.  She had her induction with Ms B, an employee of the same organisation, who provided her with all relevant information regarding her work.  All aspects of her work were related to the public sector organisation with the exception of her pay for which she submitted monthly timesheets and travel and subsistence to the respondent.  All these were signed off by her public service  manager before submitting to the respondent. The complainant had an ID card of the public sector organisation, an email account of the public sector organisation and worked alongside employees of the public sector organisation.  She represented the public sector organisation at various meetings. She was also included in Personal Development Plans for the public sector organisation.  It was only in July 2014 when the complainant first met with the respondent manager. The complainant was paid at G 5 rate even though the person whom she was replacing was at G 6.

It is the position of the complainant that the public sector organisation employed the complainant through the respondent ,- it was the public sector organisation’s decision when to hire and when to fire the complainant and the respondent, who issued the contract, was merely the conduit through which the respondent funded and employed staff during the national recruitment embargo - as such the public sector organisation was the real employer and is the correct respondent.

The respondent contends that it, and not the public sector organisation, was in fact the employer.  The respondent states that at all times in was compliant with the requirement of the Protection of Employees (Fixed-Term Work) Act, 2003. Secondly, in relation to the industrial relations claim, the respondent contends that the complainant was not an employee at the time when she lodged this complaint.

The complainant took a separate case against the public sector organisation involved which was heard by me at the same hearing.  In that case the complainant contended that the public sector organisation was the employer. The position of the respondent in the current case is that the complainant’s contract is with the respondent and therefore the respondent is the employer. While the contract of employment is part of the evidence to be considered it is not the sole determinant of the employment relationship. Historically, issues such as the level of control exerted and the level of integration within the organisation are also relevant. In this instance I am satisfied in relation to these two tests that the public sector organisation was the employer.  In reaching this decision I note in particular;

•                     The complainant was replacing a permanent member of staff of the public sector organisation and substantially carrying out that role. She was recruited in the manner she was in order to avoid the embargo on recruitment applying to the public sector organisation.

•                     The public sector organisation was fully involved in the recruitment process.

•                     On a day to day basis the complainant was subject to instructions by staff of the public sector organisation and to the public sector organisation’s controls.

•                     When she was made redundant the public sector organisation paid an additional fee to the respondent to cover this cost, although there was no provision in the memorandum of understanding between the two parties requiring the public sector organisation to do so.

The role of the respondent was therefore to assist in the recruitment of, and administration of the complainant’s terms and conditions, including contracts of employment, on behalf of the public sector organisation.

I find therefore that the respondent is not the employer in this case.

As I have determined that the respondent was not the employer the claims are dismissed.

Wrong respondent.