Complainant

Respondent

Anonymised Parties

A Worker

A Food Producer

Representatives

Robert Crowley BL instructed by       Eoin McGuigan McGuigan Solicitors

N/A

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-00022940-001

31/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022940-002

31/10/2018

The complainant commenced employment on 19th September 2016 and was paid an hourly rate of €9.55. She was subsequently involved in a road traffic accident on 6th June 2017, further to which she went on sick leave. She claimed that she was discriminatorily dismissed from her employment on 28th June 2018, when she was issued a copy of her P45.

The complainant suffered significant injuries in a road accident on 6th June 2017 further to which she was certified as unfit for work and was advised to take time off to aid her recovery. She informed the respondent of this and engaged with management over the following months via text message as she continued to recover. During this time, she was given no indication from either the respondent or the agency that her job was under threat and claimed that she hoped to return to work when she was fit to do so.

In November 2017, the complainant attended the premises of the agency which engaged her where she met with Ms A and requested that a loss of earnings certificate be completed as she required same as part of her application to the Personal Injuries Assessment Board following her road traffic accident. She also informed Ms A that she was still under the care of her GP and would not be in a position to return to work at that stage.

Without any prior notice or warning, the complainant was sent an email on 28th June 2018 by the agency, which attached her P45. She stated that she was shocked to be treated in such a manner and noted that the P45 was backdated to 1st December 2017.

The respondent did not attend to give evidence.

This case was heard in conjunction with ADJ 17777. In that matter, the complainant identified the agency to be the respondent while in the instant case the agency’s client is the respondent. Given that she can only have one employer however, I must ascertain who this is and who therefore is the correct respondent.

In making my decision, I must have regard to Section 2(3) (c) of the Act which states that:

(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer.

In line with this provision, I find that the respondent in the instant case is not liable for the pay of the worker because such liability clearly rests with the agency. Accordingly, I do not have jurisdiction to hear either of these complaints because the respondent was not the complainant’s employer.

CA-00022940-001: I do not have jurisdiction to hear this complaint for the reasons set out above.

CA-00022940-002 : I do not have jurisdiction to hear this complaint for the reasons set out above.