ADJUDICATION OFFICER DECISION AND RECOMMENDATION
Adjudication Reference: ADJ-00017752
Parties:
Representatives | None | Darragh Whelan IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00022916-001 | 30/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00022916-002 | 30/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00022919-001 | 30/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00022919-002 | 30/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00022919-003 | 30/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00022919-004 | 30/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00022919-005 | 30/10/2018 |
Date of Adjudication Hearing: 20/09/2019
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
This case concerns a claim comprised of 7 discrete complaints by the claimant against his employer – an employment agency, with whom he commenced employment in 2008 - hereinafter referred to as the respondent. The complaints outlined below – arising in the course of his employment with a hirer - fall under the Employment Equality Act, 1998-2015, the Industrial Relations Act, 1969, the Protection of Employees (Temporary Agency Work) Act, 2012, and the Safety, Health and Welfare at Work Act, 2005, as lodged with the Commission on 30 October 2018 (see below). The complaints – as outlined below - are refuted by the respondent in their entirety. |
Summary of Complainant’s Case:
CA-00022916-001: The claimant contends that – via the application of a disciplinary warning – he was discriminated against on the grounds of disability by the respondent for being out sick. CA-00022916-002: The claimant contends that he was suspended/disciplined for raising a grievance about a member of the hirer’s management team. However, he argues that the relevant grievance was a group decision. CA-00022919-001: The claimant contends that in contrast with custom and practice, he was not allowed to bring a witness or representative to consequential meetings with management. CA-00022919-002: The claimant contends that – in contrast with other agency workers - the ‘hirer’ never gave him a contract of employment (i.e. made him a direct employee). CA-00022919-003: The complainant contends that he was penalised – by being allocated to assembly work - for making a complaint under health and safety legislation. CA-00022919-004: The complainant contends that he was treated less favourably by the hirer in accessing facilities and amenities and in being allocated to assembly work, in breach of equal treatment and bullying policies. CA-00022919-005: The complainant contends that he did not receive the same basic work conditions as comparable employees, with particular reference to the advance provision or notice of rosters. |
Summary of Respondent’s Case:
CA-00022916-001: The claimant contends that – via the application of a disciplinary warning – he was discriminated against on the grounds of disability by the respondent for being out sick. However, the respondent contends that the disciplinary measures were appropriate and that the reason for absence referred to is not considered to be a disability under the definition of the Act. Furthermore, it is argued that the Claimant has failed to discharge the burden of proof and, consequently, the claim cannot succeed.
CA-00022916-002: The claimant contends that he was suspended/disciplined for raising a grievance about a member of the hirer’s management team. However, the relevant grievance was a group decision. The respondent notes that in a similar case regarding the issuance of a warning, the Labour Court stated (in Tesco Ireland v A Worker, CD/18/144) that: “The issue came before the Court on the 25th July 2018 at that point the final written warning had expired and therefore the issue was moot. The Court cannot expunge something that no longer exists”. This circumstance also applies here. Furthermore, in relation to the procedures used, the respondent contends that the claimant was afforded all of the benefits of fair procedure, in line with the respondent’s established policy, the L.R.C./W.R.C. Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.
CA-00022919-001: The claimant contends that in contrast with custom and practice, he was not allowed to bring a witness or representative to consequential meetings with management. Firstly, the respondent contends that the matter complained of by the claimant is not considered a basic working and employment condition as set as per the definition under the Act. Furthermore, the entitlement to representation at meetings is set out in the respondent’s disciplinary procedures in line with S.I. 146/2000. The procedure is unambiguous in that an individual is entitled to bring a fellow colleague or trade union official. As the claimant is employed by the agency and not by the hirer, a fellow colleague in this instance means a colleague from the agency.
CA-00022919-002: The claimant contends that – in contrast with other agency workers - the ‘hirer’ never gave him a contract of employment (i.e. made him a direct employee). However, the respondent notes that the advertising of vacancies within the hiring organisation is not within the respondent’s remit and therefore no breach of the legislation being claimed under has occurred. That is, it is not within the respondent’s remit to provide contracts with the hirer and the hirer is under no obligation to directly hire an agency worker.
CA-00022919-003: The complainant contends that he was penalised – by being allocated to assembly work - for making a complaint under health and safety legislation. However, the respondent contends that no action was taken as provided by Section 27(3) of the Act. Furthermore, the respondent contends that at no point was an issue regarding health and safety raised with the respondent. In any case, no adverse treatment was suffered by the claimant. As is the practice within the respondent, if an individual’s performance on driving duties falls below the required standard, they are placed temporarily on assembly duties. Accordingly, it is argued that there is no causal connection between any alleged action taken by the claimant and the request to work assembly duties.
CA-00022919-004: The complainant contends that he was treated less favourably by the hirer in accessing facilities and amenities and in being allocated to assembly work, in breach of equal treatment and bullying policies. The respondent points out that under Section 14 of the relevant Act, relating to the provision of collective facilities and amenities by a hirer to an individual, the claim is wholly unrelated to the respondent. Furthermore, the respondent has no control over the facilities and amenities shared by the employees. In any case, the respondent points out, agency workers and directly hired employees share the same facilities and amenities and agency workers are not treated less favourably than direct hire employees.
CA-00022919-005: The complainant contends that he did not receive the same basic work conditions as comparable employees, with particular reference to the advance provision or notice of rosters. The respondent contends that the Act is specific with regards to the definition of basic working and employment conditions and that the issuance of a roster does not fall under the definition as set out in the Act. |
Findings and Conclusions:
CA-00022916-001: The reason for absence referred to is not considered to be a disability under the the Act and the claimant has failed to discharge the burden of proof.
CA-00022916-002: In a similar case regarding the issuance of a warning, the Labour Court stated (in Tesco Ireland v A Worker, CD/18/144) that: “The issue came before the Court on the 25th July 2018 at that point the final written warning had expired and therefore the issue was moot. The Court cannot expunge something that no longer exists”. Furthermore, no evidence was produced that serves to call into question the procedures used.
CA-00022919-001: With reference to representation, the respondent draws attention to S.I. 146/2000. With reference to same, it is noted that the relevant S.I. states that: ‘for the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise’.
CA-00022919-002: The advertising of vacancies within the hiring organisation is not within the respondent’s remit. That is, it is not within the respondent’s remit to provide contracts with the hirer, who is under no obligation to directly hire an agency worker.
CA-00022919-003: No action was taken as provided by Section 27(3) of the relevant Act. Notably, the claimant failed to rebut the respondent’s contention that at no point was an issue regarding health and safety raised with the respondent. Furthermore, no evidence was presented to indicate a causal connection between any alleged action taken by the claimant and the request to work assembly duties.
CA-00022919-004: Section 14 of the relevant Act, relating to the provision of collective facilities and amenities, pertains to the hirer as opposed to the respondent.
CA-00022919-005: The relevant enactment is specific with regard to the definition of basic working and employment conditions and does not extend to the issuance of a roster. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
CA-00022916-001: The claim is not well founded and is not upheld. CA-00022916-002: The claim is not well founded and is not upheld. CA-00022919-001: The claim is well founded and is upheld. The Adjudication Officer awards the Complainant compensation in the amount of €2,500 to be paid within 42 days of the date of this decision. CA-00022919-002: The claim is not well founded and is not upheld. CA-00022919-003: The claim is not well founded and is not upheld. CA-00022919-004: The claim is not well founded and is not upheld. CA-00022919-005: The claim is not well founded and is not upheld. |
Dated: 13th December 2019
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Key Words:
Agency Hirer Discrimination Representation |