TUD182

The Adjudication Officer decided that 1) no transfer of undertakings took place, 2) the complaint under the Employee’s (Temporary Agency Workers) Act 2012 was misconceived and 3) the Complainant did not have locus standi to bring a complaint under the Unfair Dismissals Act 1997 – 2007.

A correcting order was issued and the Complainant appealed against those Decisions to this Court on 19 October 2016. The cases came on for hearing before this Court on the 23rd November 2017.

Background

The Complainant was at all material times an employee of Matrix Resources Limited an employment agency within the meaning of the Employment Agency Act 1971. The Complainant was also a Director of that Company.

The main customer of Matrix Resources Limited was the Primary Care Reimbursement Service (PCRS) of the HSE (the Respondent). The Complainant administered and or managed all staff assigned by the Agency to work in that service.

In 2005 the Respondent engaged Matrix Resources Limited as an employment agency for the supply of agency workers to meet its staffing needs. Initially it provided seasonal agency workers to the Respondent. In 2007 it entered a further agreement with the Respondent for the provision of a significantly larger number of agency workers to meet its day-to-day business needs.

Over the following years the number of agency workers Matrix Resources Limited supplied to the Respondent progressively increased as a result of the impact the employment embargo imposed on it by the State.

The Complainant, through the agency, oversaw the recruitment, assignment and administration of the contractual and statutory entitlements of those agency workers.

In 2015 the Government relaxed the employment embargo on the recruitment of staff in the public sector. At the same time the HSE published its National Service Plan 2015 which had, as one of its objectives, the reduction of its reliance of agency staff.

On 9 March 2015 Mr David Moore, Head of Corporate Services of PCRS wrote to Matrix Resources Limited stating that the Respondent was seeking to implement the policy objectives outlined in the 2015 Plan having specific regard to the reduction in its reliance on agency staff. In the letter, he stated that the relaxation of the employment embargo would allow for the conversion of existing agency staff supplied by Matrix Resources Limited into direct employees. He stated that the process would take place in accordance with HSE procedures and that each agency worker would be invited to participate in a competition for Clerical Officer posts.

The letter anticipated that the conversion process would take up to six weeks and noted that after it was completed the Respondent would no longer require the services of Matrix Resources Limited.

The Complainant took the view that as the Respondent intended engaging in a “conversion process” it amounted to a transfer of undertakings within the meaning of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulations).

The conversion process was given effect as set out in Mr Moore’s letter. Each of the affected agency workers was notified of the vacancies and invited to apply for the available posts. The overwhelming majority of agency workers were appointed onto the staff of the HSE through that procedure. Those that were not successful had exceeded the retirement age or were not appointed for some similar technical reason. The Complainant was not included in that process and was not offered the opportunity to apply for employment with the HSE.

The Complainant claims that her exclusion from the conversion process and that she should have been included in the consequent transfer of undertakings infringed her rights and entitlements under several statutory headings.

Firstly, she claims that she is an agency worker within the meaning of the Protection of Employees (Temporary Agency Workers) Act 2012 (the Agency Workers' Act).

Secondly, she claims that her role was to provide personnel administration services on behalf of the HSE to the agency workers employed by Matrix Resources Limited.

Thirdly, she claims that as the conversion process was in effect a transfer of undertakings within the meaning of the Regulations and that as she was an employee of the business unit that transferred to the HSE her employment also transferred at that time.

Fourthly, she claims that as an agency worker engaged in the personnel administration of the agency workers assigned by Matrix to the HSE she was entitled to have applied to her the same terms and conditions of employment as directly employed workers performing the same tasks for the client.

Fifthly, she claims that those employees enjoyed superior terms and conditions of employment when compared to those that she enjoyed and on that basis claims that she has been denied her rights and entitlements under that Act.

Finally, she claims that as she is entitled to transfer as part of the transfer of undertakings from Matrix to the HSE its refusal to subsequently maintain her in employment amounts to a dismissal within the meaning of the Unfair Dismissals Acts 1977 – 2007 (the Unfair Dismissals Acts).

The Respondent submits that the HSE signed a commercial contract with an employment agency, in this case Matrix Resources Limited, to provide agency workers to meet business needs. Those needs changed in 2015 when the Respondent was given permission by the Department of Health to increase its staff complement. The HSE so notified Matrix Resources Limited by way of Mr Moore’s letter referred to above.

Consequent upon these developments, a number of vacancies arose in the HSE and under Section 11 of the Agency Workers' Act agency workers are entitled to be notified of and to apply for all vacancies that arise in such circumstances.

The Respondent submits that each of the agency workers that applied in response to the advertised job vacancies were interviewed through the normal procedures and were appointed based on their performance at interview. It states that the total number of vacancies exceeded the total number of agency workers provided to it by Matrix Ltd and was consequently it was in a position to offer all suitable candidates employment as Grade III Clerical Officers.

It submits that the Complainant was not offered the opportunity to participate in the recruitment opportunity as she was not an agency worker within the meaning of the Agency Worker's Act and had never been assigned to work within the HSE whether in its PCRS service or otherwise.

It submits that compliance with its statutory obligations under the Agency Workers' Act does not amount to a transfer of undertakings within the meaning of the Regulations.

It further submits that no transfer of undertakings arises in this case. It submits that no business unit transferred from Matrix to the HSE. It submits that even if it did, which it denies, it submits that the Complainant could not claim to be assigned to the undertaking in question as she never worked for, on behalf of or within the PCRS.

It submits that the Complainant’s claim that she performed personnel management functions on behalf of the HSE are without foundation. It submits that the Complainant managed the business of Matrix Resources Limited which included the recruitment, administration and payment of its employees who were assigned to work under the direction and supervision of the Respondent. It submits that conducting and overseeing the business of the employment agency does not and cannot amount to her assignment to work for and under the direction and supervision of the Respondent.

It submits that as the Complainant was not an agency worker within the meaning of the Agency Workers' Act she cannot seek to rely on the provision of the Agency Workers' Act in support of the claims she advances before the Court.

Finally, it submits that as no transfer of undertakings took place the Complainant had no employment relationship with the Respondent. As a consequence, it submits, the Complainant cannot maintain a claim for unfair dismissal against a body by which she was never employed or assigned to as an agency worker.

Findings of the Court

The Court has considered the extensive written and oral submissions of both sides in this case.

Based on the submissions and the evidence before it the Court finds as follows

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  1. The Complainant was employed by Matrix Ltd and carried out work on behalf of that body. Such work involved recruiting staff for employment by Matrix Resources Limited and their assignment to its clients. In this case that involved assigning staff to work for the Respondent in accordance with the terms of a commercial contract it concluded with that body initially in 2005 which was renewed and extended subsequently in 2007 and again in following years. The number of agency workers it assigned to that client varied as its needs changed. The Respondent supervised and directed those workers on a day-to-day basis. The Court finds that she at no time supervised and directed the Complainant in the discharge of her duties for Matrix Resources Limited. Those duties included the payment and management of Matrix’s employees assigned to work for the Respondent. It did not include the supervision and management of their day-to-day work for that body. That was solely the responsibility of the Respondent. The Complainant had no role in that. Instead her role was internal to the conduct of Matrix Resources Limited’s responsibility to its own employees who as agency workers were assigned to work for the Respondent.

• 
  2. The role of an employment agency is to provide staff to clients. Matrix Resources Limited concluded a commercial contract with the Respondent to do just that. When the Respondent decided to meet its business needs by increasing its staff numbers Mr Moore, an official with the Respondent, so notified Matrix Resources Limited of that decision. The Court finds that Mr Moore’s letter of 9 March 2015 is no more than such a notification.
  
  3. Having so decided the Respondent was required by Section 11 of the Agency Workers' Act to notify all agency workers of all employment vacancies and to give them the opportunity to submit applications for the positions.
  • 
    

    Section 11 of the Act states

    11.— A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.

  
  4. Based on the evidence and information before it the Court finds that the Respondent did no more than comply with its obligations under Section 11 of the Agency Workers' Act.
  
  5. As the Respondent relies on Mr Moore’s letter and the subsequent notification of the vacancies to the agency workers to ground her claim that a transfer of undertakings arises in this case and as the Court has found that the letter is merely a notification of a reduction in its requirement for the services supplied by Matrix Resources Limited and the publication of notices of the employment vacancies to the agency workers is required by statute, the Court finds no merit in the claim that a transfer of undertakings arises from the combination of these two actions by the Respondent.
  
  6. Accordingly, the Court finds no merit in the Complainant’s claim that the actions of the Respondent amounted to a transfer of undertakings within the meaning of the Regulations.
  
  7. Finally, as the Court has found that the Complainant at all times worked for Matrix Resources Limited and at no time worked for the Respondent either directly or as an agency worker it further finds that the she has no locus standi to bring a complaint under Section 6 of the Unfair Dismissals Acts.

The Decisions of the Adjudication Officer are affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
09 February 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.