AWD185

The Adjudication Officer, in a decision made on 26^thJune 2018 set aside the complaint of the Appellant.

Preliminary matter

The Respondent submitted that a preliminary matter arose in the within appeal. The Respondent submitted that the Appellant had not, at the material time, been an agency worker within the meaning of the Act. The Court decided to consider this matter as a preliminary matter on the basis that the Court’s decision on this matter could be determinative of the appeal in its entirety.

The Appellant’s complaint was made to the Workplace Relations Commission on 3^rdNovember 2017. Consequently, the cognisable period for the within complaint is 4^thMay 2017 to 3^rdNovember 2017. The Appellant was, at the material time, employed by the Respondent and located at a large site of a client of the Respondent to provide hygiene services as a supervisor.

The Act provides protection for persons who are agency workers within the meaning of the Act.

The Act at Section 2 defines an agency worker as follows:

• “agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency;

• 7. Reporting to / Instructions

  You shall report to your Manager / Supervisor or such other colleague as the Company directs. You will receive and follow instructions from your Manager / Supervisor. You will not follow the instructions or directions of any other person or colleague at your place of work without prior authorisation of your manager / supervisor.

The Appellant has submitted that it is open to a party to a contract to waive a provision of the contract. He has submitted that, in practice at his workplace, the Respondent had waived paragraph 7 of the contract of employment as written and effectively replaced it with an implied term by virtue of which the Appellant could, at the material time, be assigned to work for and under the direction and supervision of staff of the client company of the Respondent. The Court heard evidence and submissions from the parties on this matter.

The uncontested evidence of the Respondent was that the Respondent, at the material time, operated a fixed price managed service contract to provide hygiene services under a service level agreement with the client company. The Court is familiar with the nature of such contracts and understands the contrast between the nature of such contracts and contracts for the provision of agency personnel.

Uncontested evidence was given that the Appellant was employed on a contract which provided him with 37.5 hours per week which was not subject to fluctuation.

It was common case that the Respondent company’s presence on the client site was comprised of general operative level staff, supervisory staff including the Appellant, a first level of management and a second level of management.

Evidence on behalf of the Appellant was that supervisor level staff of the Respondent gave instructions to general operative level staff of the Respondent and that management level staff of the Respondent gave instructions to supervisor level staff of the Respondent.

Evidence on behalf of the Appellant and Respondent confirmed that all matters related to sick and annual leave were dealt with by the Respondent’s supervisory and management level staff. Evidence on behalf of the Appellant was that all incidents and issues of a major and minor nature were reported by supervisory level staff of the Respondent to the management of the Respondent on the client site. Similarly, evidence was given by both parties that, in 2017, a dispute arose between the Appellant and staff of the client company as regards the responsibility of the staff of the Respondent in terms of movement of the ‘lollop’, which the Court understands to be a piece of equipment. Evidence from both parties was that when that dispute arose the Appellant sought clarification and direction from what he referred to as ‘my management’, by which he meant the management staff of the Respondent on the client site. That clarification and direction was provided by the management of the Respondent in writing in May 2017.

In addition to the evidence tendered as regards the nature of the relationship between the Appellant and the management of the Respondent, it was common case that grievances raised by the Appellant were addressed in a process of the Respondent and similarly a disciplinary process relating to the Appellant was conducted entirely by the Respondent.

No evidence was given to the Court of a reporting arrangement between the Appellant and client company staff and no contention was put to the Court that the Appellant reported to any staff other than management of the Respondent.

The Court has considered the submissions and evidence of the parties and concludes that no basis has been established for the Court to regard the respondent as having waived clause 7 of the Appellant’s contract of employment.

In those circumstances, the Court finds that the Appellant was not, at the material time, operating under a contract of employment by virtue of which he was assigned to work for, and under the direction and supervision of, a person other than his employer, the Respondent. In light of that finding the Court must conclude that the Appellant does not have locus standi to maintain a complaint under the Act.

The Court, in consequence of its finding as set out above, is not required to consider the submissions of the parties in relation to the corporate history or structure of the Respondent or the history of the contract operated by the Respondent with the client company. Neither is the Court required to consider the matter of dismissal of the Appellant; an event which, the Court has been advised, is the subject of separate litigation and the circumstances of which was disputed before the Court.

Determination

The Court determines that the Appellant does not have locus standi to maintain the within appeal. The decision of the Adjudication Officer is affirmed and the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
9 October 2018______________________
MNChairman



NOTE

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