Complainant

Respondent

Anonymised Parties

A parliamentary assistant

A Dáil Deputy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012501-001

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012501-002

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012501-003

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00012501-004

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012501-005

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012501-006

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012501-007

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012501-008

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012501-009

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012501-010

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012501-011

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012501-012

12/07/2017

The complainant was employed from June 2012 until July 2014 as a parliamentary assistant (“PA”) to a Dáil Deputy. In July 2014, she was employed as a secretarial assistant by two members of the Seanad. In May 2015, she was again employed as a PA to a Dáil Deputy. A general election took place in February 2016 and on June 9th, the complainant commenced work as a PA to a newly elected TD, the respondent in this case. On each assignment, the complainant worked for TDs and Senators who were members of the same political party.

In January 2017, the respondent decided that, rather than employ a PA, he would use the “vouched allowance option” available to Oireachtas members, to engage contractors to work on a variety of projects. He wrote to the complainant on January 9th 2017 to give her notice of the termination of her employment on February 3rd 2017.   The respondent’s position is that the complainant was made redundant, due to his decision not to employ a PA in the future.

The complainant has submitted complaints related to the termination her employment and various complaints about her contract of employment, her hours of work, breaks, annual leave, public holidays and minimum notice.

Complaints Against Three Respondents

In his letter accompanying the complaint forms, on behalf of the complainant, Mr Grogan wrote:

“We attach 3 claims which are all inter related. Not 100% sure who the correct employer is as our client worked in the Dáil.”

Three identical complaints were submitted:

ADJ-0009565 against this respondent, the TD;

ADJ-0009559 against the political party of which the TD is a member;

ADJ-0009566 against the body governing the delivery of services to the Houses of the Oireachtas (“the Service Provider”).

As a preliminary issue therefore, from the three named respondents, I have to decide who the complainant’s employer was.

Contract Between the Complainant and the Respondent TD

At the hearing of this complaint, the respondent TD stated that he was the complainant’s employer and that he agreed to employ her in June 2016. Evidence was presented of a contract of employment signed on July 21st 2016 by the complainant as the “employee” and the respondent as the “employer.”

On page 1 of the contract, the relationship with the Service Provider is set out:

“A   Following the General Election for Dáil Eireann held on 26th February, the Employer was elected as a member of the 32nd Dáil and, in this capacity and further subject to the terms of this Contract, wishes to employ the Employee in accordance with the terms of this contract.

“B The (Service Provider) facilitates the provision of a payroll mechanism for the remuneration of the Employee by the Employer within that Employer’s statutory entitlement, the (Service Provider) not being the employer of the Employee and all matters relating to the employment of the Employee being matters solely for the Employer.

“C The Employee is willing and hereby agrees to be employed on a specified purpose contract on the terms set out herein.”

In a submission presented by a representative of the Service Provider, I was informed that this contract is provided for in a Statutory Instrument enacted in 2016, Oireachtas (Ministerial and Parliamentary Offices) (Secretarial Facilities) Regulations 2016, (SI 599/2016). Regulation 12 provides that:

“A person providing secretarial facilities under these Regulations is the employee of the member or qualifying party to whom the facility is provided under a contract of employment made between them.”

The Regulations provide that a parliamentary assistant is an employee of the member of the Dáil OR the party who has qualified for the funds to employ someone. In the case of this complainant, she was an employee of the Dáil deputy and her contract of employment is patently clear on that matter.

Case Law

At the hearing, the Service Provider referred to two precedents addressing the employment status of parliamentary secretarial assistants. In the first, the extempore judgement of Keane J in the High Court in Anne Holliday v Houses of the Oireachtas and Another, JR 75/93, the High Court ruled that a parliamentary secretary was an employee of the Dáil Deputy. In this judgement, the High Court criticised the absence of regulation of the scheme for the employment of PAs and this has now been remedied with the enactment of SI 599/2016.

In an Employment Appeals Tribunal case of Blackbyrne v Pringle and Others, UD 432/2012, the chairman found that, on the retirement of Deputy Pringle TD, the complainant could not claim to be an employee of the Service Provider and she stated that the ruling in the Holliday case “continues to be good law.”

Conclusion

It is clear that the complainant was never an employee of the political party of which the respondent TD is a member. From her contract, and, in accordance with SI 599/2016, it is apparent that she was not an employee of the Service Provider. The respondent TD was the complainant’s employer from June 9th 2016 until February 3rd 2017 and I agree with him that he is the appropriate respondent with regard to these complaints.

For the respondent, Mr Dunne argued that, as the complainant was employed from June 9th 2016 until February 3rd 2017, she did not have the requisite 52 weeks’ service to qualify for protection under the Unfair Dismissals Acts.   The respondent’s position is that the complainant’s employment was terminated due to redundancy and their submission in this respect is considered under the heading of complaint number CA-00012501-004 below.

Under this heading on the complaint form, the complainant stated, “If not dismissal a redundancy.”

Mr Grogan argued that the complainant was employed continuously as a PA from June 2012 and that there was no break in her service. He said that he had decided not to ask the complainant to give evidence and he said he would “go no further.”

It is evident that the complainant was employed by the respondent for a period of approximately eight months. With regard to continuity of employment from 2012, I refer again to SI 599/2016 which provides that PAs and parliamentary secretaries are employed by members of the Houses of the Oireachtas, or a political party who qualifies to employ a secretary or an administrative assistant. Continuity of employment is conditional on the circumstances of the particular TD or Senator, whether he or she is re-elected following a general election and, whether he or she decides to continue to employ the same PA across changes in government. From my research, I understand that some PAs work for the same TD for many years, some remain with one TD or Senator for the duration of a Dáil term and others work for just a short few months. Regardless of the arrangements, employment is continuous only for as long as the PA remains in the employment of the TD or Senator, or the political party.

As the complainant had service with the respondent for less than one year, I am prevented from adjudicating upon a complaint under the Unfair Dismissals Acts.

Under this heading on the complaint form, the complainant stated, “I was told it was a redundancy. If not a redundancy, a dismissal.”

No further details were provided in respect of this complaint and no evidence was presented at the hearing.

Options for TDs Regarding Secretarial Assistance

In accordance with the Oireachtas (Allowances and Facilities) Regulations 2003 and SI 599/2016 to which I referred earlier, the Service Provider provides a “Scheme for Secretarial Assistance” (the Scheme) for members of the Houses of the Oireachtas and Political Parties. Under the Scheme, members are entitled to employ a secretarial assistant funded by the Service Provider and are also provided with two additional secretarial assistants by way of two options.

The first option, known as “the staff option,” is that they can employ their own PA who is then paid by the Service Provider. Regardless of this funding mechanism, the employer is the relevant TD who enters into a contract with the PA. The second option, known as “the vouched allowance option” provides an annual allowance for each TD, currently up to €41,092, fully vouched for secretarial assistants. This permits the TD to either employ a temporary vouched employee or to engage one or more contractors to undertake work on their behalf. Once the appropriate vouchers are submitted to the Service Provider, the payment is transferred. There is no contractual relationship between the Service Provider and the contractor, with the Service Provider limited to the function of providing a payroll service.

The respondent’s position is that the complainant’s contract was terminated by reason of a valid redundancy. Clause 1.2 of her contract, at subsection 1.2.3, sets out one of the circumstances in which the complainant’s employment may be terminated:

“…in the case where the Employer, being at the commencement of this contract a Member of Dáil Eireann decides, in accordance with the stipulations and criteria set out in Note (d) in Appendix 1 to this contract, to cease to employ a Parliamentary Assistant and to instead claim the allowance provided for by SI 84/2010…”

Note (d) of Appendix 1 confirms the legal force of SI 599/2016 and, at paragraph 3, sets out the process that Oireachtas members must follow when engaging administrative support:

“It is the current general policy of the (Service Provider) that, as soon as practible after the Member is elected, he or she must write to the (Service Provider) expressing a wish either to employ a Parliamentary Assistant or receive the Secretarial Allowance. A member may, after employing a Parliamentary Assistant, decide that he or she would instead prefer to opt for the Secretarial Allowance.   This involves terminating the Parliamentary Assistant’s employment and the Parliamentary Assistant is entitled by law to a minimum period of notice of this termination (“minimum statutory notice).”

Included in the contract for PAs therefore, is a provision for the termination of employment if the TD opts to change from employing a PA to using the “vouched allowance option.”   In the case of this complainant, the respondent decided to carry out this work in a different manner by engaging contractors instead of employing a PA. At the hearing, Mr Dunne, for the respondent, said that the TD was engaged in a variety of projects and he wanted to select who and how he would support this work. His position is that this is a legitimate basis for the redundancy of the complainant.

Termination of the Complainant’s Employment

Having received the approval of the Ceann Comhairle to change from employing a PA to the vouched allowance option, on January 19th 2016, the respondent wrote to the complainant:

“(Name of complainant)A Chara,

“I regret to inform you that it would be in the best interests of my office to avail of the Vouched Allowance Expense scheme that is available to me and is outlined in Appendix 1 Note (d) of your contract.

“Therefore I am now giving you 2 weeks’ notice and informing you that your final date on the Leinster House payroll will be February 3rd 2017. The (Service Provider) will be responsible for your termination payment and I have attached a letter from them outlining what payments are due to you. Should you have any queries about this payment, please contact them directly.

“Furthermore, I would like you to use tomorrow (January 20th) to take any personal belongings with you as I wish you to take gardening leave for the duration of your notice period i.e. you will be on full pay but will not be required to attend the office.

“I wish you all the best in your future.”

The Service Provider determined that the complainant was entitled to a termination payment of €22,297.27. On January 20th, the respondent wrote to the complaint confirming this amount and included a form for the complainant to sign to accept the payment.   The complainant refused to sign the form when her employment was terminated in January 2016. At the hearing of this complaint, on March 23rd 2018, I was informed that she had recently signed the form to accept the payment.

Having considered this matter, I am satisfied that the respondent was entitled to change the way he availed of secretarial support. When he moved from employing the complainant as a PA to the use of the vouched expense system in February 2017, this resulted in the termination of the complainant’s employment due to redundancy. In accordance with the relevant regulations, the complainant was entitled to a redundancy payment. This payment was calculated by the Service Provider and communicated to the complainant on January 19th 2017 and was in excess of her statutory entitlement.

As the complainant has confirmed her acceptance of the severance payment of €22,297.27, I have decided that the respondent should notify the Service Provider so that the money can be paid to her.

Complaint that Information is not Provided in Relation to the National Minimum Wage Act

On behalf of the complaint, Mr Grogan referred to the requirement at section 2(g) and 2(ga) of the Terms of Employment (Information) Act 1994, to set out the rate of pay and the pay reference period for the purpose of the National Minimum Wage Act 2000. Section 3(1) of the Terms of Employment (Information) Act sets out this requirement:

“An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(Sub-sections a to f are not relevant here).

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section.”

No Definition of “Normal Working Hours”

At section 8.1, under the heading of “Hours,” the complainant’s contract states:

“Normal working hours shall be from • am to • pm. Monday to Friday, being a 41 hour week (inclusive of lunch breaks.)”

Mr Grogan, on behalf of the complainant, said that “there is no such thing as normal working hours,” and the phrase is not defined by the Interpretation Act 2005 and the specific hours of work should have been stated in the contract.

Complaint that Information is not Provided in Relation to the National Minimum Wage Act

The complainant’s weekly rate of pay was €890 and was therefore in excess of the National Minimum Wage. The respondent’s position is that there was no requirement to refer to a reference period related to the calculation of the minimum wage in the complainant’s contract.

No Definition of “Normal Working Hours”

For the respondent, Mr Dunne said that the complainant was always aware of her hours of work, regardless of the fact that the contract fails to specify daily start and finish times. She was contracted to work a 41 hour week inclusive of breaks, from Monday to Friday between 9.00am and 5.00pm. The respondent said that he was flexible with regard to hours of work and that most days, the complainant did not start until 10.00am and she left early on Mondays and Fridays.

Mr Dunne said that the complainant’s contract should be read in conjunction with SI 599/2016 which regulates the provision of secretarial assistance to the Houses of the Oireachtas. A comprehensive manual on the day to day operation of the scheme was submitted in evidence and contains information on every aspect of employment from recruitment to retirement.

There was no requirement to have any reference to the National Minimum Wage Act in the complainant’s contract of employment.

It is my view that the complainant’s contract was comprehensive, detailed and in compliance with the requirements of the Terms of Employment (Information) Act.   Regardless of the omission of start and finish times, in my view, there was no uncertainty on the part of the complainant with regard to this and the flexibility provided by the contract and shown by her employer was generally to her advantage.

I have decided that this complaint is not upheld.

In her submission under this heading, the complainant stated that she “did not receive a document which complied with section 5”. No further details were submitted and Mr Grogan withdrew this complaint at the hearing.

Under the heading of “Pay,” the complaint form, states, “minimum notice as per contract and/or Act not furnished.” At the hearing, on behalf of the complainant, Mr Grogan accepted that she received her contractual notice. On this basis, there is no requirement to consider this matter any further.

Under the heading of “Hours of Work,” the complaint form states, “I did not always get 11 hours section 11.” At the hearing, Mr Grogan said that no records of hours of work were produced to show that the complainant always got an 11 hour daily rest break as required by section 11 of the Organisation of Working Time Act 1997.   Mr Grogan said that it is for the employer to show that the complainant always got her breaks.

On behalf of the respondent, Mr Dunne said that there were no circumstances where the complainant was deprived of the requisite 11 hour break. He said that she was permitted to start work late and finish early on certain days and she never raised any concerns about her hours of work or breaks.

The complainant’s hours of work were from Monday to Friday from 9.00am to 5.00pm. On very rare occasions, she worked late on Tuesdays or Wednesdays if there was a debate in the Dáil; however, on these occasions, she remained at work at her own discretion and was not required by the respondent to stay late.

It is my view that there is no momentum behind this complaint, and, while the complainant declined to give evidence, I find that there were no circumstances during her employment with the respondent, when she was prevented from getting an 11-hour daily break.

I have decided that this complaint is not upheld.

In her submission, the complainant stated, “Did not receive entitlement to 4 weeks / 2 weeks uninterrupted.” At the hearing, on behalf of the complainant, Mr Grogan said that she was entitled to take her holidays in blocks of weeks, and that this was not the way in which she availed of her annual leave entitlement.

Mr Grogan said that, in accordance with the Interpretation Act 2005, a week commences at midnight on Sunday and, on this basis, the complainant was entitled to four weeks’ holidays with each week commencing at midnight on Sunday. The complainant herself did not give evidence on this matter.   Mr Grogan said that she got two weeks’ holidays, but that the remainder of her leave was not taken in blocks of weeks, and, on this basis, there has been a breach of the Organisation of Working Time Act.

The respondent’s position is that, in accordance with her contract of employment, the complainant was entitled to 20 days’ holidays. The leave year runs from April 1st to March 31st, and therefore the relevant leave year was April 1st 2016 until March 31st 2017. During this time, the complainant got more than 20 days’ holidays.   She was on holidays for four days from August 2nd to 5th 2016, one day on August 19th, a half day on August 25th, 11 days from September 2nd until the 19th and three days from September 21st to 23rd. In addition, the complainant was off work from December 27th 2016 to January 3rd 2017. Therefore, the complainant had more than 20 days’ annual leave, of which, two weeks was a period of unbroken leave.

Having observed the complainant at the hearing, I am satisfied that she is not motivated to pursue this complaint with any seriousness. Section 20 (1) of the Organisation of Working Time Act provides that,

“The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—  

(i) the need for the employee to reconcile work and any family responsibilities,  

(ii) the opportunities for rest and recreation available to the employee,  

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and  

(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.”

There is no mention here of the requirement to take leave in blocks of one week. The Act provides that the timing of annual leave “shall be determined” by the employer,” but “subject to the employer having consulted the employee.”

The Act therefore specifically provides for an employee to take an unbroken period of two weeks’ leave (subject to eight weeks worked in a year) and there is no provision for leave to be taken only in blocks of one week. If this was the case, it would result in a disadvantage to employees who wish to take one or two days’ leave or even a half day’s leave for a particular reason.

I have decided that this complaint is not upheld.

In her submission under this heading, the complainant stated, “Not paid annual leave entitlement / not receiving entitlement.”   At the hearing, on behalf of the complainant, Mr Grogan argued that the complainant should have received her pay for her annual leave before she went on annual leave.

The complainant was paid her wages regardless of whether she was on holidays or not. At no stage during her employment with the respondent, did she request pay in advance of going on holidays.

Having observed the complainant at the hearing, I am satisfied that she is not motivated to pursue this complaint with any seriousness. Section 20(2)(a) of the Organisation of Working Time Act provides that,

“The pay in respect of an employee's annual leave shall—  

(a) be paid to the employee in advance of his or her taking the leave.”

The purpose of this provision is, it seems to me, to ensure that an employee going on holidays has access to their wages while they are on holidays. In previous times, before the majority of employees were paid their wages by electronic funds transfer, employees who were going on holidays were paid their wages on the last day of work before they went on holidays. While this provision remains in the legislation, it is rarely observed in practice, although an employee who requests their wages for the period of their holidays before going on holidays, is entitled to receive it.

As the complainant at no stage requested payment for her holidays in advance, I have decided that this complaint is not upheld.

On her complaint form, the complainant stated that she did not receive her public holiday entitlements.   At the hearing, on behalf of the complainant, Mr Grogan withdrew this complaint.

Under the heading of “Minimum Notice” on her complaint form, the complainant stated: “No minimum notice paid.”

On January 19th 2017, the respondent wrote to the complainant giving her notice of the termination of her employment on February 3rd. She was informed that she was not required to work her notice, and she was paid in lieu. She was therefore given two weeks’ notice, although, in accordance with her contract, and, in accordance with the Minimum Notice and Terms of Employment Act, she was entitled to one week’s notice.

Having considered this issue of notice, I find that the complainant received two weeks’ notice of the termination of her employment, and that she did not work her notice and was paid in lieu of notice.

I have decided that this complaint is not upheld.

Under the heading of “Minimum Notice” on the complaint form, the complainant stated: “I was placed on gardening leave – was entitled to work this period.” No further submission was made in respect of this matter at the hearing.

Clause 4.2 of the complainant’s contract provides that the employer is not obliged to provide work for an employee during their notice period and the employee may be required to remain at home, available for work, if required. The respondent said that he was entitled to ask the complainant to remain at home for the two weeks of her notice and to request the Service Provider to pay the complainant her wages while she was on notice.

I find that the complainant received her entitlements in respect of notice, in accordance with the provisions of her contract of employment and the Minimum Notice and Terms of Employment Act.

This complaint is not upheld.

Under the heading, “Hours of Work” on her complaint form, the complainant stated: “Not notified of hours under section 17 at least 24 hours in advance.”

At the hearing, Mr Grogan complained about the fact that the complainant was not properly notified of her start and finish time, as her contract is silent on this matter.   Section 17 of the Organisation of Working Time Act provides that an employee who is not subject to an employment regulation order, a registered employment agreement or a collective agreement, or an employee whose contract does not specific their working hours, must be notified of the hours they will be required to work, 24 hours before the start of the week they are required to work. He said for example, that the complainant should have been notified on a Thursday of the hours she was required to work on the following Monday to Friday.

For the respondent, Mr Dunne argued that this was a superfluous request, because the complainant was well aware of her start and finish times and of the hours she was required to work each week. She had a great deal of flexibility in this regard and would have been much more disadvantaged if the hours had been strictly laid down. He said that the provisions of section 17 of the Act is specifically for employees who work irregular hours.

Having considered this matter, I find that the complainant knew the hours that she was required to work and that the failure of the respondent to issue her with weekly notifications of her hours is of no consequence and did result in any disadvantage to her.

This complaint is not upheld.

Parliamentary assistant, redundancy