Complainant

Respondent

Anonymised Parties

An Agency Care Assistant

A Health Provider

Act

Complaint 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-00017587-001

21/02/2018

The complainant is an agency employee and was at the time deployed to a hospital.

The named respondent is the ‘Hirer’ and a preliminary point arises as to whether it is the correct respondent.

An allegation was made against the complainant on September 22nd 2016 in relation to an assault on a patient.

The hospital in which she was employed initiated an investigation and the complainant was suspended by her direct employer; the employment agency.

The complainant says that the named respondent assumed jurisdiction over the complainant for the purpose of the investigation and is therefore validly named as the respondent.

The complainant was not interviewed as part of the investigation until July 12th the followig year and her representative raised a number of procedural issues about the allegations and the procedure adopted by the respondent.

As there was no outcome in view the complainant’s representative contacted the respondent on September 7th to be told that the final report was being prepared.

In fact, on November 22nd (a year after it commenced, and fourteen months after the complaint was made) the complainant was advised that the outcome was inconclusive.

There has been nothing further since and the complainant remains on suspension.

The complainant’s case is that, had she been a direct employee of the respondent, her treatment would have been entirely different.

Her period of suspension would have been paid, and undoubtedly this would have led to an earlier conclusion to the matter. As it is her period on suspension has (at the time of the hearing) stretched to twenty months. This brings her within the provisions of Section 6 (1) of the Act which entitles a worker

‘….for the duration of his or her assignment with the hirer to the same 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….’

She was invited to avail of the respondent ‘s Employee Assistance Programme.

Accordingly, the respondent has assumed a degree of responsibility for the complainant.

The respondent did not attend as it said it was not the complainant’s employer.

Without doubt, the position in which the complainant has been placed in this case is quite unacceptable.

Her initial period of suspension while the complaint was being investigated was fourteen months, which is somewhat extraordinary, although there might have been an element of justification for it as long as the investigation was continuing.

However, there is none for the continuing suspension.

If the term ‘justice delayed is justice denied’ has any application, then it does here. There has been no finding against the complainant of any sort, yet she remains on unpaid suspension.

In addition, she is caught between her direct employer, the agency, which says it is awaiting the outcome of the hirer’s internal processes, and the hirer which has done nothing to conclude the matter for eight months, at the time of writing.

Having recorded these observations, (and I trust those in a position to do something about them will heed them) I turn to the preliminary matter of who is the correct respondent.

The complainant confirmed in her direct evidence to the hearing that her contract of employment is with the agency, and her payslips confirm this.

Accordingly, I find that the respondent named in the complaint is not the correct one and I have no jurisdiction to make a finding in the case.

For the reasons set out above I do not uphold CA-00017587-001 and it is dismissed.

Agency work, hirer as respondent.