FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ACCENTURE (REPRESENTED BY MASON HAYES & CURRAN) - AND - AMELIA DEINHARD DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No. ADJ-00019164.
BACKGROUND:
2. The Claimant appealed the Decisions of an Adjudication Officer to the Labour Court on the 21st March 2019 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 31st May 2019. The following is the Decision of the Court.
DETERMINATION:
This is an appeal by Ms Amelia Deinhard against the Decision of an Adjudication Officer ADJ-00019164, CA-00025027-001 under the Organisation of Working Time Act 1997 (“the Act”). The Adjudication Officer held that her claim against Accenture was not well-founded as the Respondent named in the complaint was not correct and accordingly he held that he did not have jurisdiction to make a finding on the case. Accordingly, he dismissed the claim under the Act.
In this Determination the parties are referred to as they were at first instance. Hence Ms Amelia Deinhard is referred to as “the Complainant” and Accenture is referred to as “the Respondent”.
The Complainant was assigned through Hays Specialist Recruitment (Ireland) Limited (“the Agency”) to work for the Respondent as an agency worker with Accenture (the Hirer) from 5thJune 2018 to 4thOctober 2018.
The Court notes that the Complainant accepts that she was an agency worker assigned to the Respondent/Hirer. She was provided with a contract of employment by the Agency which states that she is an employee of the Agency and was paid by the Agency.
The Law
The expression “agency worker” under the Protection of Employee’s (Temporary Agency Workers) Act, 2012, is defined as: -
- “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”
- “a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract)”
- ““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, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;”
In all the circumstance of this case, the Court is satisfied that the nominated Respondent was not the Complainant’s employer and accordingly the Court has no jurisdiction to hear her claim under the Act.
Determination
The Court concurs with the Decision of the Adjudication Officer and upholds his Decision. Therefore, the Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
TH______________________
10 June 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.