ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015770
Parties:
| Complainant | Respondent |
Anonymised Parties | An office worker | A state agency |
Representatives |
| McDowell Purcell Solicitors |
Complaint:
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-00020468-001 | 10/07/2018 |
Date of Adjudication Hearing: 11/10/2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant referred his complaint on 10 July 2018. On 10 September 2018, the Director General delegated the complaint to me for investigation and decision. On 17 September 2018, the respondent emailed the Commission to state that the complainant was not its employee. I held a joint hearing with the parties, in which representatives of the Government department which the respondent stated was the complainant’s employer, on 11 October 2018. |
Summary of Complainant’s Case:
The complainant brought two complaints to the Commission – one against the within respondent, and one against the Government department who was the respondent’s “parent department” prior to a consolidation of state agencies. He stated that it was very difficult to find out who his employer was and that he brought the cases to secure his position. He did state, however, that his actual contract of employment was with the Government department rather than the agency. The representatives of the Government department confirmed this. |
Summary of Respondent’s Case:
The respondent stated that the complainant had been assigned to its offices, and then been seconded following the agency consolidation which brought it under the aegis of another government department from 1 January 2018. The respondent also pointed out that it had no control over the complainant’s remuneration, which is at the heart of his complaint. The representatives of the Government department gave evidence on the financial details. |
Findings and Conclusions:
Given the above evidence, and the fact that it was not in dispute between the complainant and the representatives of the Government department which was the parent department of the respondent until 31 December 2017, that they were the parties to the complainant’s fixed term contract, I am satisfied that the complainant mistakenly impleaded the within respondent and that it is not the complainant’s employer within the meaning of the Protection of Employees (Fixed-Term Work) Act, 2003. The within complaint is therefore misconceived in law. A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In my view, this complaint is similarly misconceived because of the lack of an employment relationship within the meaning of the Protection of Employees (Fixed-Term Work) Act, 2003 between the parties. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the within case is misconceived in law and that I have no jurisdiction to investigate it. |
Dated: October 16th 2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Key Words:
No employment relationship – misconceived – no jurisdiction. |