TED2012

1.Appeal of Adjudication Officer Decision No. ADJ-00018309,CA-00023511-004

BACKGROUND:

2.The Employer appealed the Adjudication Officer’s Decision to the Labour Court on 10 December 2019. A Labour Court hearing took place in a virtual courtroom on the 26 November 2020.

The following is the Labour Court's Determination:-

DETERMINATION:

This is an appeal by Department of Employment Affairs & Social Protection against the decision of an Adjudication Officer ADJ-00018309, CA-00023511-004 in a claim by Ms Collette Kennedy that her employer failed to provide her with a written statement of her terms and conditions of employment as required by Section 3 of the Terms of Employment (Information) Act 1994 - 2014, (the Act). The Adjudication Officer, in a Decision dated 30^thOctober 2019, found the complaint to be well founded and directed the Respondent to pay €3,000.00 in compensation to the Complainant.

The parties are referred to in this Determination as they were at first instance. Hence, Ms Collette Kennedy is referred to as “the Complainant” and Department of Employment Affairs & Social Protection is referred to as “the Respondent” or “DEASP”.

The claim was referred under the Act to the Workplace Relations Commission on 25th November 2018.

The Respondent did not attend the hearing before the Adjudication Officer. The Adjudication Officer held that the Complainant was on a contract of service with the named Respondent, that she had not been given a contract on the commencement of her role, she had been givenad hoccontracts over the years to demonstrate compliance to the Workplace Inspectorate and accordingly found that section 3 of the Act had been breached.

Background

The Complainant was first employed by FÁS as a Community Employment Supervisor in 1993 and she continues in that role. The sponsor of the scheme is South East Community ServiceWexford Limited (“the Sponsor”), a company established on 15th October 2007.

Preliminary Issue

The Respondent raised a preliminary issue that the Complainant was not an employee of the Respondent, as it held that she was employed by the Sponsor.

The import of the submission advanced by the Respondent had the potential to deprive the Complainant of the necessary legal standing (locus standi) to pursue her claim against the DEASP, therefore the Court would have no jurisdiction to hear the substantive case under the Act. In the interest of efficiency of process, the Court proposed to consider this issue as a preliminary matter, as it had the potential to be determinative of the appeal in its entirety. The parties agreed to proceed accordingly. The Court proceeded to hear the extensive submissions presented by both sides on this matter.

Conclusion of the Court

The issue of the Complainant’slocus standito pursue the claim under the Act against the named Respondent was the subject of a preliminary hearing under a separate claim, brought by the Complainant, under the Protection of Employees (Fixed-Term Work) Act 2003 (the 2003 Act). This issue was extensively considered by the Court in Determination FTD204, which found that the Respondent is not the employer of the Complainant. Consequently, the Court held the Complainant lackedlocus standito bring her complaint under the 2003 Act.

It follows therefore, for the same reasoning, that the Court must also find that the Complainant lackslocus standito bring her complaint under the Terms of Employment (Information) Act 1994 – 2014 against the Respondent. Therefore, the Respondent’s appeal is allowed, and the Decision of the Adjudication Officer is set aside.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
NJ	______________________
17 December 2020	Deputy Chairman