Act

Complaint Reference No.

Date of Receipt

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

CA-00016465-001

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016465-002

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016465-003

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016465-004

20/12/2017

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

CA-00016478-001

21/12/2017

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

CA-00016478-002

21/12/2017

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

CA-00016478-003

21/12/2017

The evidence and submissions of the complainant are set out in detail in ADJ 10315. The relevant evidence pertinent to this adjudication decision is repeated below.

The complainant started in the role in August 2014. The complainant told the GP Coordinator that she invoiced through the Company. The GP Coordinator said that the complainant should invoice through the Agency.

The complainant outlined that she worked under the direction of the GP Coordinator, who assigned her hours. She was covered by the group health insurance policy and did not have her own insurance. She worked in the public body’s clinic and used their items. She could not delegate to others. She had to give six weeks’ notice to take a week’s annual leave, for which she was not paid. She worked regular hours and they were the hours of the doctor she replaced.

The complainant outlined that she signed up to the Company with other doctors for tax and insurance purposes. Previously, her wages were paid through this company for other locum work. She did this other work for seven years and during an audit, Revenue queried whether she was an employee. The complainant referred to the letter of the 3rd March 2010which states that locums are employees of the practice.

The complainant never registered with the Agency. The GP Coordinator had said that the complainant must be paid via the Agency and the complainant had no choice but to accept this. The complainant was never on their books and was only asked to register with them in July 2017. The complainant declined to do so.

Following her dismissal, the complainant obtained work for one or two weeks in part-time roles. She earned about €6,000 in 2018 while she earned €48,000 per annum with the respondent. She had invoiced the Agency and the public body, who transferred money to the Company for her to be paid. The complainant faxed her hours to both the Agency and the public body. The Agency invoiced the public body.

In questioning by ESA Consultants for the Agency, the complainant said that her employer must be the public body as she attended the clinic every day for two years and 10 months. She was not aware why the Agency was in the loop and she had to be paid through them. She joined the Company by signing a form in the same way as other doctors. The Agency did not instruct her, and she just sent them her hours. The complainant accepted that the Agency was a facilitator, and this was the same for the Company, who deducted her taxes. The complainant said that she received a P60 from Revenue and her P45 referred to the Company as her employer. This was sent in March 2017 as she then set up her own company and invoiced directly. She did not invoice the Agency but sent them her hours and from this the Agency invoiced the public body.

In closing comments, the complainant outlined that the 2017 contract was a fixed-term contract and she did not receive this. Even if she was provided with the contract, this was to regularise her position as an employee of the public body. Alternatively, she had a fixed-term contract with the fixed purpose of replacing a named doctor. It was submitted that the respondent now sought to pull together a story to put the complainant at a disadvantage. The complainant was there for a fixed purpose and entitled to a contract of indefinite duration. If the complainant was an employee of the public body, the Agency was used to divert payment to the complainant and she is entitled to win the unfair dismissal complaint. It is the law that the end user is the employer and it is incorrect to say that the Agency was the employer. Furthermore, the complainant was never registered with the Agency.

The Agency respondent submitted that the complainant was not its employee. The complainant invoiced for services through the Company. The respondent maintains a website through which medical professionals can obtain locum work. The respondent sent the complainant details of other roles available at the time her role with the healthcare provider came to an end. The respondent submits that the claims are not well founded as the complainant was not its employee.

I find that the complainant was not an employee of the Agency respondent. The Agency was an arrangement of convenience to facilitate the use of locum doctors. This did not establish an employment relationship. The statutes all require the complainant to be an employee. As the complainant was not an employee, she cannot claim redress pursuant to these Acts. Each complaint is, therefore, not well founded.

CA-00016465-001

I find that the complaint pursuant to the Terms of Employment (Information) Act is not well founded as the complainant was not an employee of the respondent within the ambit of the Act.

CA-00016465-002

I find that the complaint pursuant to the Minimum Notice and Terms of Employment Act is not well founded as the complainant was not an employee of the respondent within the ambit of the Act.

CA-00016465-003

I find that the complaint pursuant to the Organisation of Working Time Act is not well founded as the complainant was not an employee of the respondent within the ambit of the Act.

CA-00016465-004

I find that the complaint pursuant to the Unfair Dismissals Act is not well founded as the complainant was not an employee of the respondent within the ambit of the Act.

CA-00016478-001

I find that the complaint pursuant to the Protection of Employment (Fixed-Term Work) Act is not well founded as the complainant was not an employee of the respondent within the ambit of the Act.

CA-00016478-002

I find that the complaint pursuant to the Protection of Employment (Fixed-Term Work) Act is not well founded as the complainant was not an employee of the respondent within the ambit of the Act.

Status of ‘employee’