AWD182

This is an appeal by Arturas Glemza (Complainant) against decision ADJ- 00006633 of an Adjudication Officer in his complaint against his former employer Noel Recruitment (Ireland) Limited (the Respondent). The complaint was made pursuant to the protection of Employees (Temporary Agency Work) Act 2012 (the Act). The Adjudication Officer found that the complaint was not well founded.

Background

The Complainant was employed by the Respondent between the 24^thMay 2016 and 22^ndJanuary 2017.The Respondent is an Employment Agency who placed the Complainant with one of their clients for the duration of his employment with them. The Complainant was employed on a Permanent Contract (Pay between assignment contract) in accordance with s6.(2) of the Act . The Complainant is claiming the same basic working and employment conditions as the direct hires he worked alongside.

Complainant’s position.

It’s the Complainant’s case that although his contract stated that he was a permanent employee of the Respondent the letter he received on the 23^rdon May attached to his contract of employment did not contain the correct name of the company. It only had the company’s trading name. It is the Complainant’s contention that as the derogation under s6(2) emanates from a directive it must be strictly construed. The notification he received was not from a legal entity therefore the derogation was not properly notified and does not apply. In those circumstances the Complainant is entitled to claim the same basic working and employment conditions as the directly hired staff.

Respondent’s position

The Complainant was employed on a permanent contract in compliance with s6(2) of the Act. The Respondent does not dispute that the heading on the covering letter was their trading name. However, the contract was attached to the letter and contained the full name and address of the company and as required the letter was given to him prior to his entering into the contract of employment.

The applicable law

Section 6 of the Act states:-

• (1) Subject to any collective agreement for the time being standing approved undersection 8,an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

  (2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that—

  (a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and

  ( b) in respect of the period between assignments and subject to—

  (i) Part 3 of the Act of 2000, and

  (ii) any other enactment or any collective agreement that makes provision in relation to terms and conditions of employment relating to pay,

  the agency worker is paid by the employment agency an amount equal to not less than half of the pay to which he or she was entitled in respect of his or her most recent assignment.

  (3) Where the assignment of an agency worker commenced before 5 December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker’s basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date.

  (4) This section shall not operate to affect any arrangement provided for under an enactment, a collective agreement or otherwise whereby an agency worker is entitled to basic working and employment conditions that are better than the basic working and employment conditions to which he or she would be entitled under this section.

  (5) In this section “permanent contract of employment” means a contract of employment of indefinite duration.

In submissions to the Court the Respondent argued that the requirement under the legislation is for the employment agency to notify the agency worker in writing before he entered into the contract of employment. The fact that the notification letter was on headed paper using the company’s trading name does not take from the fact that the Complainant was notified in an appropriate manner. The representative for the Complainant accepted that the correct name and address and registration number for the company were set out in the contract attached to the covering letter. However, he argued that if you applied a strict interpretation of the law a letter issuing from the company under its trading name did not meet the requirement that the employment agency notify the agency worker.

It is clear to the Court from the submissions of both parties that the Complainant was at all times clear who he had received the correspondence from. It was not disputed that on receipt of the correspondence the Complainant the next day went to the respondent’s office and signed the contract.

The Court is satisfied that the Complainant was on a permanent contract of employment with the Respondent and therefore cannot claim the basic working and employment conditions of the direct hires in the place he was working.

Determination

For the reasons set out above the Court is satisfied that the Complainant was on a permanent contract of employment. The Complainant’s appeal cannot succeed and is dismissed. The decision of the Adjudication officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
29 January 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.