ADJ-00020242

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020242

Parties:

	Complainant	Respondent
Anonymised Parties	A Health Care Assistant	A Nursing Home

Representatives

Barry O’Mahony B.L. instructed by DAS Ireland

Complaints:

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-00026665-001	18/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00026665-003	18/02/2019

Date of Adjudication Hearing: 10/12/2019

Workplace Relations Commission Adjudication Officer: Hugh Lonsdale

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Preliminary Issue:

The respondent raises two preliminary points. Firstly, the complainant has incorrectly named them; in that the name of the name of the nursing home is a business name and does not exist as a legal entity. Second, the complainant was never employed by the legal entity behind the nursing home but was, at all times when she worked in the nursing home, employed by an employment agency.

The complainant contends the respondent is liable for the actions of its staff.

The complainant took similar complaints against the employment agency.

CA-26665-001

The claim under the Employment Equality Acts is in relation to sexual harassment and Section 14A which deals with Harassment and Sexual Harassment states at subsection (5):

“In this section ‘ employee ’ includes an individual who is —

( a ) seeking or using any service provided by an employment agency, and

( b ) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1) ,

and accordingly any reference to the individual’ s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.”

I consider that the complainant is entitled to take a claim against her employer, the employment agency. However, the same claim cannot be brought against two respondents and I conclude the complainant incorrectly named the respondent and is therefore unable to establish a prima facie case of discrimination.

CA-26665-002

The Payment of Wages Act, section 1 of the Act defines “employer” as “the person with whom the employee has entered into or for whom the employee works under a contract of employment.” In this case the complainant did not have a contract of employment with the named respondent. Her contract of employment was with the employment agency.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-26665-001

For the reasons stated above I find the complainant is unable to establish a prima facie case of discrimination and the complaint is not well founded.

CA-26665-002

For the reasons stated above I find that the complaint is not well founded.

Dated: January 28th 2020

Workplace Relations Commission Adjudication Officer: Hugh Lonsdale

Key Words:

Agency worker – wrong respondent named