FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FTP RECRUITMENT LIMITED T/A CLARITY LOCUMS - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No(s)ADJ-00022038 CA-00028788-001,002
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 16 October 2019 the Adjudication Officer issued the following Recommendation:-
“The Complainant should have waited until the internal appeal mechanisms were exhausted prior to referring the matter to the WRC for adjudication. Accordingly, this complaint is not well- founded.
I am satisfied that there was no regulatory or legislative requirement for a supervisor to be present in the business at all times and that there was no need for agency personnel to act up. Accordingly, this complaint is not well- founded.”.
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 26 November 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on 7 February 2020.
DECISION:
Background
The Respondent is an employment agency licenced in accordance with the provision of the Employment Agency Act 1971. The Complainant is a pharmacist registered with Pharmaceutical Society of Ireland. It is not disputed that the Complainant was an employee of the Respondent. He worked as a Locum Pharmacist for the Respondent with their clients. He completed his first shift in August 2013. From 2013 to 2019 he completed 28 shifts with the Respondent. His gross pay covering all of this period amounts to €13,338.53 approx. 250 hours of work. His employment with the Agency terminated on 7th June 2019. As he referred his claim under the Industrial Relations Act 1969 to the Workplace Relations Commission on 31stMay 2019, the details of his dismissal were not before the Court. Therefore, there were two claims before the Court concerning (i) an allegation that he was ‘blacklisted’ by the Agency from 9thMay 2019 until 27thMay 2019 and (ii) a claim regarding acting up arrangements.
- i.Claim : ‘Blacklisted by the Agency’
On 9th May 2019, the Complainant was placed at the Respondent’s client company, X Pharmacy, to work a shift as a qualified pharmacist from 9am - 7pm. At 9.10am that morning, the Complainant raised an allegation of understaffing in the pharmacy with the Respondent’s Consultant. He informed her that there was only one pharmacist on duty when there’s normally two. He said that“either my rate is doubled or I’m going home at 2pm”. The Agency replaced him by another pharmacist at 12.30pm that day and the Complainant’s shift terminated at that time. On 24th May 2019, the Respondent received a formal complaint from the Managing Director of X Pharmacy regarding the Complainant’s actions that day.
On 27thMay 2019, a copy of the Managing Director’s complaint was sent to the Complainant, requesting a response by 29th May 2019, he was advised that this was a very serious matter with potential serious repercussions and that he would be required to attend an investigation meeting. In the meantime, he was informed that no bookings would be confirmed for him until the matter was resolved.
Position of the Parties
The Complainant maintained that he was ‘blacklisted’ by the Agency as a result of a lone incident of minor dissent based on a legitimate grievance he raised. He said that banning him from work in pharmacies for the period from 9th May to 27th May 2019, unconnected to the matter in dispute was a disproportionate response. This was the period from the day in question and prior to his suspension pending an investigation. He said that during that period, he responded to a number of advertised locum positions on the Agency’s booking system but was not offered any positions.
The Agency said that the Complainant remained ‘live and active’ on the booking system, he was not actively denied work and no unilateral decision was taken to blacklist him. It stated that there were many pharmacists on its register, some who regularly work with the Agency, while others only occasionally do so, such as the Complainant. Therefore, when work is available the Agency prioritises the regular users and that was the reason why there was no work available for the Complainant in this period.
Findings and Conclusion of the Court
The Court notes that the Complainant was placed on paid suspension from 27th May 2019 in accordance with its disciplinary procedure in order to investigate the matters raised in the complaint made by the Managing Director of X Pharmacy. Therefore, the issue before the Court is limited to the period from 9th to 27th May 2019.
The Court understands that pharmacists who are allocated a locum position by the Agency are not obliged to take that offer up and the Agency is not obliged to offer such locum work to all who opt for them. On that basis and taking account of the fact that the Complainant only worked 28 shifts in almost six years while registered with the Agency, the Court does not accept the Complainant’s contention that he was ‘blacklisted’ during the period from 9th to 27th May 2019.
Accordingly, the Court does not find in favour of the Complainant’s claim.
His appeal is not upheld.
- ii.Claim : Regularising ‘acting up’ arrangements
The Complainant complained that X Pharamcy did not have a supervising pharmacist for almost nine months by May 2019 and the position continues to remain vacant, thereby necessitating other pharmacy staff to ‘act up’ in that position.
The Respondent stated that it could not comment on the staffing arrangements in its client company, X Pharmacy. It contended that this complaint should have been channelled to the appropriate statutory body (The Pharmaceutical Society of Ireland) as the agency had no statutory function in ensuring compliance with the pharmacy legislation.
Findings and Conclusion of the Court
The Complainant’s dispute concerns an alleged understaffing in X Pharmacy on 9th May 2019. Having considered the matter, the Court is satisfied that the subject matter of the dispute is outside its jurisdiction. The Court does not accept that a ‘trade dispute’ within the meaning of the Industrial Relations Acts applies in respect of this aspect of his claim.
The Court’s role under the Industrial Relations Acts 1946-2015 is to investigate a “trade dispute”. A trade dispute is defined by section 3 of the Act of 1946, as follows:
- “the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person”
Recommendation
The dispute which the Claimant is seeking to have investigated fundamentally concerns the operations of a client company of the Respondent, not a dispute between a worker and his employer. That matter is outside the ambit of a trade dispute as that term is defined by statute. Accordingly, it cannot be investigated by the Court.
For these reasons the Court must decline to accept jurisdiction in this appeal.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
DC______________________
12 February 2020Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary.