Complainant

Respondent

Anonymised Parties

An Accountant

A Cultural Organisation

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-00027810-001

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00027810-002

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00027810-003

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027810-004

16/04/2019

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

CA-00027810-005

16/04/2019

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

CA-00027810-006

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00027810-007

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00027810-008

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00027810-009

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00027810-010

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00027810-012

16/04/2019

The respondent is a cultural and heritage organisation employing around 150 people at several locations in Ireland. On May 14th 2014, the complainant was recruited through an employment agency to fill a role as an accountant. He remains an employee of the agency, although he has been filling the same role for the respondent organisation since 2014. When he was appointed, he was covering for a permanent employee, “Mr A,” who was on sick leave. When Mr A returned to work, the complainant remained working with the respondent as an accountant but continuing to be employed by the agency.   Around July 2016, Mr A was made redundant and the complainant remained on, carrying out the vacated role. The complainant is now in his fifth year with the respondent and he claims that he is entitled to a contract of indefinite duration (CID). Throughout this five-year period, the complainant’s fixed-term contract has been renewed several times by the employment agency, with the most recent renewal taking him to an end date of July 27th 2019.

Five complaints were submitted to the WRC on October 29th 2018, under the reference number ADJ-00017784. These complaints were submitted as a result of a decision by the respondent organisation to seek approval to create a new vacancy for a permanent position of Head of Financial and Procurement Services. On December 11th 2018, the complainant had a meeting with the director of the respondent organisation and she informed him that his most recent contract, which was due to expire on January 31st 2019, would not be renewed. The director said that she intended to proceed with the application for sanction from the organisation’s parent department to recruit for the new role, which is at the level of assistant principal officer (AP) and is that of an accounting professional. The complainant argues that this is the job he has been carrying out since 2014.

A hearing at the WRC was arranged for January 18th 2019.   The parties were open to exploring a possible resolution through mediation and the January hearing was adjourned to allow this to happen. In the end, the mediation proved unfruitful and the matters were referred back to the adjudication service.

On March 25th 2019, the job of Head of Financial and Procurement Services, Professional Accountant Grade 1, was advertised internally in the respondent organisation and for public competition on www.publicjobs.ie. Arising from this, on April 16th, the complainant submitted the 11 complaints that are set out above. These comprise five complaints already submitted on October 29th 2018, under ADJ-00017784. At the hearing on May 10th 2019, I agreed with the parties that all the complaints, under ADJ-00017784 and ADJ-00021146 would be considered on that day.   For convenience and for ease of understanding, this document sets out my findings and my decisions in respect of the 11 complaints submitted on April 16th 2019 (ADJ-00021146) which includes the five complaints submitted on October 29th 2018 (ADJ-00017784).

Argument for a Contract of indefinite Duration

In his submission at the hearing, Mr Cullen argued that, when Mr A, the previous accountant, was made redundant nearly five years ago, there were no objective grounds justifying the continued employment of the complainant on a temporary contract.   At the hearing however, the respondent side informed me that, after Mr A’s departure, the ban on recruitment in the public service prevented the filling of his role.

Mr Cullen referred to section 8(2) of the Protection of Employees (Fixed-term Work) Act 2003 (“Fixed-term Work Act”) which provides that,

Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a CID, at the latest by the date of the renewal.

Mr Cullen said that the complainant has not been informed of any objective ground justifying the non-renewal of his contract, no explanation why he has not been offered a CID and no explanation why his job is being advertised on terms that are less favourable than his current terms. Mr Cullen claims that the salary for the job that has been advertised is €12,000 less than the salary the complainant currently earns with the agency.

Section 9(2) of the Fixed-term Work Act provides as follows:

Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

Mr Cullen submitted that, because the complainant has been employed on more than two continuous contracts, the duration of which has exceeded four years, he has fulfilled the two requirements of this section. Section 9(2) provides that,    

Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

Mr Cullen submitted that this sub-section does not apply to the complainant because, he argued, since the redundancy of Mr A, there were no objective grounds for renewing any of the complainant’s fixed-term contracts. Relying on sections 8 and 9 of the Fixed-term Work Act and on the Protection of Employees (Temporary Agency Workers) Act 2012, which provides that temporary agency workers are entitled to equal treatment as if they were direct employees, Mr Cullen argued that there are no objective grounds justifying the renewal of the complainant’s temporary contract or the advertising of his role by open competition.

In the Fixed-term Work Act, the employer and the employee are defined in terms of control and “working under” and, in Mr Cullen’s view, include a person such as the complainant who was recruited following an interview with the respondent, works under the direction of its management and the only external involvement of the employment agency is payroll provision.

In his job with the respondent organisation, the complainant is the only qualified accountant and he is responsible for internal and external audit processes, reports to management, audit committees and, on occasions, to the board of the organisation.   The newly advertised role will have the same responsibilities, with, according to Mr Cullen, the “perceived the add-on of procurement, which is effectively covered in his role already.”

Application of the EU Directive on Temporary Agency Work

Directive 2008/104 of the European Parliament on temporary agency work (“the Directive”) has been transposed into Irish law in the Protection of Employees (Temporary Agency Work) Act 2012 (“the Agency Workers Act”). Mr Cullen referred to the purpose of the Directive, which, he said, is “to improve the quality of temporary agency work by ensuring the principle of equal treatment and by recognising temporary work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.”

The Agency Workers Act defines “agency worker” as,

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.

According to Mr Cullen, this definition demonstrates that the Agency Workers Act is “not a mechanism to avoid the protection of the Fixed-term Work Act.” Article 5, at subsection (5) of the directive provides as follows:

Member States shall take appropriate measures, in accordance with national law and/or practice, with a view to preventing misuse in the application of this Article and, in particular, to preventing successive assignments designed to circumvent the provisions of this Directive. They shall inform the Commission about such measures.

A copy of the contract dated July 12th 2016 between the employment agency and the respondent was submitted in evidence by the complainant. Under the heading, “Other Statutory Entitlements,” the agency stated,

It is our policy to pay each candidate the full statutory entitlement (I.e. maternity, force majeure). We deem your company to be the employer in this instance and will pay each employee their full entitlement that would accrue to them as if they were directly employed by yourselves. (clause is clear by saying, “as if they were directly employed…”

Mr Cullen argued that this shows that the complainant was in effect, an employee of the respondent and that the agency “merely acted as a payroll bureau and not as an employer.” He described the arrangement between the employment agency and the respondent as a “brokerage arrangement of administrative convenience” to the respondent to avoid the need for sanction by the parent department of a new role when Mr A was out sick, and later, when he was made redundant. He said that the employment agency did not exercise control as the real employer.

The complainant’s salary increases were negotiated with the respondent’s head of operations and head of administration, and not with the employment agency. He had an entitlement to 29 days’ holidays, showing that he was an employee and not a contractor, as contractors tend to be permitted to take the statutory minimum of 20 days. Not under 2012 Act

Argument that the Complainant is an Employee of the Respondent

With respect to his claim that he is a direct employee, the complainant relies on the outcome of the decision of the rights commissioner in the claim of Darko Vuksic that he was an employee and not an independent contractor (r-151015-ft-14/GC).   Mr Vuksic had been employed (with the same respondent as the complainant in this case) on a series of contracts which purportedly showed him to be an independent contractor.   The rights commissioner found that he was in fact, an employee. In respect of this complainant, the respondent paid his membership of his accountancy body, and, he argued that this demonstrates that he is a direct employee. This shows that his terms and conditions were the same as a direct employee

The complainant was recruited to replace Mr A, who was out sick and who was made redundant in 2016.   He was selected to fill this role by a panel at the respondent organisation and not by the employment agency. He said that he would not have remained in the role after Mr A was made redundant if he hadn’t understood that he “was the replacement accountant going forward and in the proposed restructure proposed by the head of operations.” This restructure emerged from a report commissioned by the operations department for the restructuring of the finance section of the organisation.

Supporting Case Law

On behalf of the complainant, Mr Cullen submitted several legal precedents to support his contention that he is entitled to a CID:

Mulholland and QEB Recruitment [2015] IEHC 151

Mr Mulholland was an agency worker and a truck driver assigned to work with Greenstar Limited.   He claimed that he was entitled to be paid a rate of pay that was applicable to certain direct employees of Greenstar. Although he lost his case at the High Court, Mr Justice Kearns confirmed that the purpose of the Protection of Employees (Temporary Agency Workers) Act 2012 is to ensure that agency workers are afforded “the same basic working and employment conditions as he or she would be entitled to if they were directly employed by the hirer to carry out similar work.”

Brightwater Selection (Ireland) Limited and the Minister for Social and Family Affairs [2011] IEHC 510

This 2010 case at the High Court sets out the principle components of the test with regard to the distinction between a contract of service and a contract for service and it describes in clear terms the mutuality of obligations that needs to exist between an employer and an employee for a contract of service to be established.

Minister for Education and Skills and the Labour Court and Anne Boyle and the Committee of Management of Hillside Park Pre-school, Supreme Court record number 2017/47

This case dealt with the “triangular relationship” between the school board of management, the Minister for Education and a temporary employee. Ms Boyle was a part-time employee of Hillside Park Pre-school and she claimed an entitlement to membership of the teachers’ superannuation scheme. The Chief Justice, Mr Clarke found that Ms Boyle was an employee of the school and not of the Minister. Reaching this conclusion, he said,

“But in the context of this legislation (The Protection of Employees Part-time Work) Act 2001) and its reliance on the terms ‘contract of service’ (with only one non-applicable exception being in relation to agency workers), I think it would be stretching things much too far to suggest that there is a contract of service involving the Minister.”

Revenue Guidelines

In conclusion, in his submission, the complainant referred to the guidelines on the website of the Revenue Commissions to determine if a person is an employee or a self-employed contractor. Based on the following criteria, the guidelines show that a person is generally considered to be an employee in the following circumstances:

If the “employer” controls how, when and where the work is carried out;

If the employee supplies labour only;

If the employer pays them a fixed hourly, weekly or monthly wage;

If they cannon sub-contract their work;

If the employer supplies all the materials for the job;

If the employer supplies all the equipment;

If they are not exposed to personal financial risk carrying out the work;

If they do not assume any responsibility for investment and management in the business;

If they cannot profit from the management, scheduling or performance of the work;

If the employer sets the working hours;

If the employee carries out work for the employer only or for the employer’s business;

If the employer pays expenses to cover subsistence or travel;

If the employee is entitled to extra pay or time off for overtime.

The complainant said that he satisfies all the criteria set out above.

Preliminary Issue: “Locus Standi”

In the first instance, it is the respondent’s case that the complainant is not employed by them and secondly, that he is “trying to force his way into a different position…by claiming that he has a contract of indefinite duration for the role that is supplied for by his employer at the present time.” The respondent claims that the complainant does not have “locus standi,” meaning the legal right to bring a case under the Fixed-term Work Act or the Terms of Employment (Information) Act 1994.

As he is not an employee of the respondent, Mr O’Neill argued that the complainant cannot rely on the protection of the Fixed-term Work Act. He referred to the definition of “contract of employment,” at section 2 of the Act:

“contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract).

Mr O’Neill submitted that it is clear that the complainant agreed with the employment agency that recruited him to perform the work of an accountant for the respondent who is a “third person” in respect of the above definition.

Mr O’Neill also referred to the definitions of “employee” and “employer” at section 2 of the Act and he said that the complainant has never entered into or worked under a contract of employment with the respondent.

“Employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956 ) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or vocational education committee shall be deemed to be an employee employed by the authority, health board or vocational education committee, as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment.

In the respondent’s submission at the hearing of this complaint, Mr O’Neill stated that the fact that the complainant is not an employee is demonstrable by the fact that on more than one occasion in his complaint forms to the WRC, he has classified himself as an agency worker. Mr O’Neill argued that it is not a stateable position for the complainant to claim that he is a temporary agency worker and to attempt to assert his rights under the Fixed-term Work Act. Mr O’Neill referred to the definition of “agency worker” which has been set out above and he claimed that the complainant comes “four-square” within that definition as someone employed by an employment agency.

The Issue for Consideration

The issue I am required to adjudicate on is whether the complainant’s employment is governed by the Protection of Employees (Fixed-term Work) Act 2003. If it is, then, in accordance with section 9 of that Act, he is entitled to a CID with the respondent. If, as an agency worker, his status is not governed by the Fixed-term Work Act, then he is not so entitled.

The Relevant Law

The genesis of the Fixed-term Work Act is Council Directive 1999/70/EC concerning the framework agreement on fixed-term work. From the introduction to the Directive, it seems clear that the authors intended to treat fixed-term workers separately from agency workers, as, at clause 13, they state:

“Management and labour wished to give particular attention to fixed-term work, while at the same time indicating that it was their intention to consider the need for a similar agreement relating to temporary agency work.”

It is clear therefore, that the signatories to the Directive determined to deal with the rights of fixed-term workers in the first instance, and then, to examine the protections required by agency workers. That was achieved nine years later, in Directive 2008/104/EC, on temporary agency work. Here, at clause 5 of the introduction, we again have a reference to the two forms of work and the objective of each of the Directives:

“In the introduction to the framework agreement on fixed-term work concluded on 18 March 1999, the signatories indicated their intention to consider the need for a similar agreement on temporary agency work and decided not to include temporary agency workers in the Directive on fixed-term work.”

The decision to keep the two forms of work separate, and to draft two distinct and separate Directives, is an indication that the legislators recognised that the two forms of work are entitled to different forms of protection. I disagree with Mr Cullen’s assertion that the Fixed-term Work Act of 2003 “was extended in 2012 to stop temporary agency workers’ rights being circumvented.” It is clear from the Directives and from the intention of the authors, that the Directive on agency work is not an “extension” of the Directive on fixed-term work and that both provide a separate set of rights.

Following the intention of the 1999 Directive, the definition of “contract of employment” at section 2 of the Fixed-term Work Act is drafted to specifically exclude agency workers. This definition was referred to by Mr O’Neill on behalf of the respondent and is set out in the previous section. It includes the statement that a contract of employment,

“… shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person…”

It is clear to me therefore, that the Fixed-term Work Act applies to employees who are directly employed by a “first person” employer and that it excludes people employed by an employment agency who work for a “third person”. At section 2 of the Agency Workers Act, “agency worker” is defined as,

“… 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 of, a person other than the employment agency.”

In the same section of the Act, a “contract of employment” is defined as,

(a)   a contract of service, or

(b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that person is a party to the contract).

The reference to “a contract of service,” at subsection (a) above, is, by my understanding, a reference to a person who is employed on a permanent contract with an employment agency.

The definitions of “employee” and “contract of employment” in these two statutes are, in my view, independent of each other, and have the objective of regulating the employment of two different categories of employee; the first, in accordance with the Fixed-term Work Act, is a directly-hired temporary worker and the other, in accordance with the Agency Workers Act, is employed by an agency ad assigned to a third party. In line with the Directives, there is no provision in the Agency Workers Act to give an entitlement to an agency worker to transition or migrate to the status of a fixed-term worker.

Mr Cullen argued however, that the complainant is an agency worker whose terms and conditions are determined by the provisions of the Protection of Employees (Temporary Agency Workers) Act 2012, and that his status under this Act extends to him the protection of the Fixed-term Work Act. He makes this argument because, clause 14 of the introduction to the Directive on temporary agency work, states:

“The basic working and employment conditions applicable to temporary agency workers should be at least those which would apply to such workers if they were recruited by the user undertaking to occupy the same job.”

This objective is transposed into Irish law at section 6(1) of the Agency Workers Act which provides as follows:

“Subject to any collective agreement for the time being standing approved under section 8 , an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the 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 to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.”

Section 8 of the Agency Workers Act is not relevant because, as far as I am aware, no agreement has been entered into between the respondent and employee representatives with regard to the employment of agency workers on different terms and conditions compared to directly-hired employees.

Section 2 of the Agency Workers Act defines “basic working and employment conditions” as:

“… terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, or a hirer, and that relate to –

(a)   pay,

(b)   working time,

(c)   rest periods,

(d)   rest breaks during the working day,

(e)   night work,

(f)   overtime,

(g)   annual leave, or

(h) public holidays.”

This definition of terms and conditions of employment makes no reference to employment status or any potential entitlement to a permanent contract. The issue of access to permanent employment with a hirer is addressed at section 11 of the Agency Workers Act:

“A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.”

It is clear therefore, that the Agency Workers Act is not silent on the issue of permanent status, but it does not consider the access to a permanent job to be a “condition of employment.” The objective of the Act is clear and simple; it is to ensure that agency workers are employed on the same basic terms and conditions as directly-hired employees. The list of items included under the heading of basic terms and conditions is set out at (a) to (h) above and does not include a CID.

It is my view that, when she met the complainant in December 2018, the director of the respondent organisation was acting in keeping with this provision of section 11 of the Agency Workers Act. The director informed the complainant that a permanent role as Head of Financial and Procurement Services would be advertised and she invited him to apply.   The fact that he decided not to apply is a matter for himself and is not pertinent to the argument being made that he is entitled to a CID.

Findings

Having considered the two relevant statutes and their genesis in the Directives of 1999 and 2008, it is my view that, as an agency worker, the complainant cannot claim an entitlement to a CID in accordance with section 9 of the Fixed-term Work Act.   I find that the case law submitted by the complainant in support of this claim is not helpful, because the circumstances of the complainants in the cases referred to are dissimilar to his circumstances.

Apart from the argument that his status is governed by the Fixed-term Work Act, the complainant has presented several other reasons why he should be considered as a fixed-term worker and I wish to address these before concluding. The first of these is that he was interviewed by the respondent organisation, before being assigned there as an accountant. I find no contradiction in this fact, because as the only accountant role in the organisation, his job was a singular and senior position, and not the same as a general operative, or a fork-truck driver, jobs that are regularly “supplied” by temporary employment agencies without interview. Any organisation seeking to fill a temporary position of the significance of the only qualified accountant, would interview the candidates in advance.  

In support of his case that he is an employee, the complainant referred to the fact that he negotiated wage increases with the respondent, that he was entitled to 29 days’ holidays and that the respondent paid his membership of his accountancy association. The fact that he negotiated increases in his salary is evidence of the fact that the complainant was not treated as an employee, because the salaries of the respondent’s employees are determined by public service pay agreements. The fact that he was entitled to 29 days’ holidays and to payment of his membership fee is evidence that his basic working and employment conditions were the same as if he was an employee, a provision, as we have seen, that is consistent with the Agency Workers Act.  

The complainant also claimed that he worked under the control and direction of the respondent, and not the agency. This is the norm in the relationship between an agency worker and a “hirer” and it is my view that this “control test” is more relevant to establishing if a person is self-employed rather than establishing a connection between the rights of an agency worker and a direct hire.

In support of his argument that he should be given a CID, the complainant claims that there was no objective reason for not doing so following the redundancy of Mr A in July 2016. At that time however, the ban on recruitment across the public service was still in place and no one could be hired. For many organisations, the only way to get critical roles covered during that period was to use temporary agency employees. In any event, I have concluded that he complainant is an agency worker and not subject to section 8 of the Fixed-term Work Act.

In May 2018, the complainant had been assigned to the respondent for four years in the role of an accountant. In the run-up to that date, he made no enquiries about a possible entitlement to a CID and he did so only when it became apparent that the role he occupies was about to be consolidated into a new role of Head of Financial and Procurement Services. This failure on his part to make a case for a CID at the four-year anniversary of his assignment demonstrates a certain lack of conviction on his part about the strength of his case. Having listened to his evidence, it is my view that the nub of the complainant’s grievance is the fact that the new job of Head of Financial and Procurement Services is at the grade of assistant principal and carries a salary which is €12,000 below what he currently earns.

Conclusion

As an agency worker employed by a licensed employment agency and with a contract to work as an accountant with the respondent, the complainant’s terms and conditions are governed by the Agency Workers Act 2012. Having examined the evidence of both sides, I have concluded that, as an employee of an employment agency, the complainant does not have an entitlement, or a “locus standi” to pursue a complaint against this respondent under the Fixed-term Work Act, the Industrial Relations Act 1969 or the Terms of Employment (Information) Act 1994.

CA-00027810-001: Complaint under the Protection of Employees (Fixed-term Work) Act 2003

This is a complaint about the failure of the respondent to offer the complainant a CID. As I have concluded that the complainant is not an employee of the respondent, I decide that he is not entitled to pursue a complaint under this statute.

CA-00027810-002: Complaint under the Protection of Employees (Fixed-term Work) Act 2003

This is a complaint about the failure of the respondent to set out in writing the reasons for not offering a CID. As I have concluded that the complainant is not an employee of the respondent, I decide that he is not entitled to pursue a complaint under this statute.

CA-00027810-003: Complaint under the Protection of Employees (Fixed-term Work) Act 2003

This is a complaint that the complainant has been treated less favourably than a comparable permanent employee. As I have concluded that the complainant is not an employee of the respondent, I decide that he is not entitled to pursue a complaint under this statute.

CA-00027810-004: Complaint under the Industrial Relations Act 1969

In his complaint form, the complainant states that this is a complaint about bullying and harassment; however, the content of his submission under this heading is, for all intents and purposes, the same as the content under each of the other statutes.   As I have concluded that the complainant is not an employee of the respondent, I decide that he is not entitled to pursue a complaint under this statute.

CA-00027810-005: Complaint under the Industrial Relations Act 1969

In his complaint form, the complainant stated that he has a trade dispute that he would like to be investigated; however, the content of his submission under this heading is, for all intents and purposes, the same as the contents under each of the other statutes. As I have concluded that the complainant is not an employee of the respondent, I decide that he is not entitled to pursue a complaint under this statute.

CA-00027810-006: Complaint under the Terms of Employment (Information) Act 1994

Under this heading, the complainant said that he did not receive a statement from the respondent setting out his terms and conditions of employment. As I have concluded that the complainant is not an employee of the respondent, I decide that he is not entitled to pursue a complaint under this statute.

CA-00027810-007: Complaint under the Protection of Employees (Fixed-term Work) Act 2003

This is a complaint of penalisation for attempting to invoke entitlements under the Fixed-term Work Act or for refusing to co-operate with a breach of the Act to avoid a CID.   As I have concluded that the complainant is not an employee of the respondent, I decide that he is not entitled to pursue a complaint under this statute.

CA-00027810-008: Complaint under the Safety, Health and Welfare at Work Act 2005

This is a complaint of penalisation for making a complaint under the Safety, Health and Welfare at Work Act 2005. No evidence was presented at the hearing of any complaint having been submitted to the respondent under this Act and the complainant has not particularised this complaint. I decide that there is no substance to this complaint and the complaint fails.

CA-00027810-009: Complaint under the Protection of Employees (Temporary Agency Workers) Act 2012

This is a complaint of penalisation for exercising rights under the Agency Workers Act and the content of the complaint’s submission under this heading is, for all intents and purposes, the same as the contents under each of the other statutes. No evidence was submitted at the hearing of any act of penalisation by the respondent of the complainant for exercising his rights under the Agency Workers Act. The entirety of the complainant’s complaint relates to his argument that he is entitled to a CID. I decide that there is no substance to this complaint and the complaint fails.

CA-00027810-010: Complaint under the Protected Disclosures Act 2014

This is a complaint of penalisation for having made a protected disclosure. On April 4th 2019, the complainant submitted a protected disclosure letter to the Secretaries General of the Department of Public Expenditure and Reform and the Department of Culture, Heritage and the Gaeltacht. He claimed that the advertising of the role of Head of Financial and Procurement Services on March 25th 2019 was a misuse of public funds. No evidence was presented at the hearing that demonstrated that the complainant was penalised for making such a disclosure and I decide that his complaint in this regard fails.

CA-00027810-012: Complaint under the Protection of Employees (Temporary Agency Workers) Act 2012

This is a complaint that the complainant has not received the same basic working and employment conditions to which a comparable worker would be entitled. I found no evidence that there has been a breach of the Agency Workers Act and I decide that this complaint is not upheld.

Agency worker, contract of indefinite duration