ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016087

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/03/2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed by the Respondent as an Agency Worker.

Summary of Complainant’s Case:

The Complainant stated that he was employed by Red Chair Recruitment as an agency worker from 13 May 2016 to 17 November 2017. During his employment he worked a total of 369 days. The Complainant received €750 per week.

The Complainant stated that he was employed by the Respondent but was designated to a client as a Quantity Surveyor. The Complainant stated that he did not originally receive a contract of employment however he requested one on numerous occasions and was eventually issued with one at approximately the end of 2017. The Complainant stated that he didn’t sign the contract of employment that was issued to him as it wasn’t offered to him when he commenced employment and so he had to chase it. The Respondent to which the Complainant worked as a Quantity Surveyor, normally use another company to process contractors with them. The Complainant stated that he was never offered this option.

The Complainant stated that he worked approximately 152 days in 2016, 217 days in 2017 and that he did not work any days in 2018. The Complainant stated that he was provided with payslips for all hours worked.

The Complainant stated that he was not paid any Annual Leave or Public Holiday entitlement. The Complainant believes that he is entitled to same as per the Agency Work Act. The Complainant estimated that he was entitled to a payment between €4,000 to €5,000. The Complainant stated that he raised this issue in September 2017 however he did not get a response from the Respondent. The employee stated that he received his final payment and p45 from the Respondent on 26 June 2018.

Summary of Respondent’s Case:

The Respondent stated that the Complainant applied for a position with their client as a Quantity Surveyor. The Respondent stated that they normally use another company to process contractors with them however the Complainant requested to be paid via the Respondent and they agreed and he was employed and paid by them for the duration of the contract.

The Respondent stated that the Complainant was given a contract of employment and a copy of the staff handbook. The Respondent stated that the contract had reference to Annual Leave and Public Leave entitlement. The Respondent stated that it was their understanding that all annual leave and public holidays had to be agreed with their client to which the Complainant worked with if he was to get additional pay for it.

The Respondent claim that the Complainant was a contractor. The Respondent stated that they have never had an issue in regard to the WRC before.

Findings and Conclusions:

(4) A rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant confirmed that his last working day with the company was 17 November 2017. As per the act, this claim was made outside the timeframe outlined.

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.

The claim is not well founded based on the evidence provided given that the claim was out of time since the last date of contravention in November of 2017.

Dated:   16th May, 2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery