Complainant

Respondent

Anonymised Parties

Production Operative

Recruitment Agency

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00031641-001

17/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00031641-002

17/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00031641-003

17/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00031644-001

18/10/2019

The complainant has brought three complaints under the Protection of Employees (Temporary Agency Work) Act, 2012 and a further complaint under the Protection of Employees (Fixed-Term Work) Act, 2003.

The complainant commenced employment as a Production Operative with the respondent in February 2019. He was assigned as a Production Operative with the Hirer on 23 April 2019. His employment ended on 23/10/2019.

He earns €10.50 an hour. He works 39 hours per week.

He submitted his complaint to the WRC on 17/10/2019.

CA-00031641-001. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

The complainant was employed as a technician testing components for hardwire issues in the Hirer’s healthcare solutions business.

The complainant did not receive the same basic working and employment conditions as those afforded to comparable full-time employees with the Hirer. Those employed by the Hirer earn €11.29 per hour plus a 10% top up for working the 3- 11pm shift whereas his rate is €10.50 an hour since he started back in April 23rd, 2019 doing the same job. A colleague who commenced at the same time with him was recently taken on full time by the Hirer. Immediately his wages went up with no extra training or skills required for doing the exact same job as the complainant and his fellow agency workers.

The respondent upon being repeatedly requested by him for his terms and conditions as required by section 3(1A) of the Terms of Employment ( Information) Act 1994-2019 told him that they would sort it out but didn’t.

CA-00031641-002. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

The complainant was not informed by the Hirer as an agency worker of a vacant position with the Hirer’s employment.

The complainant was hired on a 3-month temporary position which was to transition to a permanent position in which he would be   directly employed by the Hirer after that 3-month period. After 3 months with the Hirer and when he had heard nothing about his future employment or contract, he began to ask respondent about his future and was told "oh next week, it’s happening just relax". This continued for weeks. Then positions became available as people who started with him started to get medicals and contracts and were asked by the Hirer not to tell anybody to "keep it quiet". He was never advised of these vacancies or told what criteria he needed to meet.

CA-00031641-003. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

As an agency worker the complainant did not receive the same basic working and employment conditions to which a comparable worker would be entitled. He was subjected to harassment and bullied for several months.   His line lead with the Hirer told him that he that allegedly he had an attitude and had arguments with people on the floor. These were never been brought to his attention. This is in breach of the company’s HR policy on these issues. He was not afforded the same processes as a direct employee would be in regard to explaining his side of the story i.e. a disciplinary hearing. He was also subjected to hate symbols being drawn on his locker and attempts at reporting it fell on deaf ears. A swastika was drawn on his locker and when he reported it to his line lead, he was told "sure i have a **** and ****" on mine”. This issue was not resolved as the company has a zero-tolerance policy on this and he was never even given a chance to report it to HR. He was also told several times by his line lead that the HR policy or code of ethics applies to an employee of the Hirer only.

CA-00031644-001. Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The complainant states that he was penalised by his employer for invoking entitlements under the Protection of Employees (Fixed-Term Work) Act 2003 when he asked about differences in treatment relative to permanent employees regarding pay, medical assessments and performance reviews. The respondent’s HR representative responsible for management of staff with the Hirer threatened the complainant in a meeting on 11 September 2019 with the statement "if you bring any legal action the first thing that will happen is you will lose your job”. After reporting this statement to the respondent no action was taken. The complainant’s witness of the incident has still not even been contacted yet.

The complainant met the respondent’s HR department on 27 September. He advised that that he did not want to go down the "legal route". He reported the threat made to him at the meeting of the 11 September. He advised that he had made a telephone call to the respondent after receiving this threat. Following the meeting on the 27 September with the respondent’s HR department he was then emailed an updated alleged 6-month contract by HR on the 17/10/2019 less than a week before it was due to expire even though he had previously been told that he would be employed in   a 3-month temporary position after which he would then transfer to a permanent position with the Hirer. His employment with the Hirer ended on 23 October. He was given nor reason as to why the Hire made this decision.

After the 23 October he told the respondent HR manager that he no longer wished to work with them. The complainant states that the advertisement for the post with the respondent said it was a 3-month temporary. He was never told it was a 6-month contract at any point previous to this email on 17 October 2019 and never signed one for this position. He contends that this is an act of penalisation for having asserted his rights under the Act of 2003

Evidence of witness 1.

The witness confirmed that he commenced with the respondent on the same date as the complainant. The witness transferred to the Hirer as a direct employee 5 months after commencing with the respondent and commenced on a rate of €11.29 per hour. His transfer to the Hirer was delayed due to issues with punctuality.

CA-00031641-001. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

The respondent states that all assembler roles such as that undertaken by the complainant are hired through the respondent. The Hirer does not hire directly for these positions. The Hirer has agreed with the respondent that the entry rate for this grade is €10.50 per hour with a rate of €11.55 for late shifts. Once the employee successfully completes their 3-month training the respondent and Hirer discuss transfer to the Hirer where the rate rises to €11.29 pe hour.

There are no direct Hirer comparators for the complainant’s role.

There is no agreed end date on which the employee’s training is deemed to have been completed nor is there an agreed period after which the employee should transfer into the employment of the Hirer.

His complaint should not be upheld.

CA-00031641-002. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

This complaint refers to the alleged obligation of the respondent to notify the complainant of vacancies with the Hirer. Section 11 of the Act of 2012 states that the obligation lies with the Hirer to advertise vacancies. It is not the respondent’s function to provide contracts for the complainant with the Hirer. The Hirer is not obliged to directly hire an agency employee worker.

This complaint should not be upheld.

CA-00031641-003. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

The complainant raised no concerns with the respondent regarding the Hirer’s behaviour. The respondent’s Dignity at Work Policy was not activated by the complainant.

The complainant did not bring the matter of the swastika to the respondent’s attention.

CA-00031644-001. Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The complainant ‘s assignment as per his contract of 17 April 2019 with the hirer was as a temporary agency worker with no specific end date or project attached to it. He is not a fixed term employee.

It is not within the respondent’s remit to provide contracts with the hirer, who is under no obligation to directly hire an agency worker.

He was advised on 17 October that his assignment with the Hirer would end on 23 October.

He is still an employee of the respondent. They have never dismissed him.

The penalisation clause as set out in section 13 (1) of the Act of 2003 does not apply as he was not hired as a fixed term employee- Given that he is not a fixed term employee he cannot claim the protection of the Act.

Evidence of Witness 1.

The respondent Production Manager advised that she met the complainant to discuss the end of his assignment with the Hirer on the 23 October. She had advised the complainant that the Hirer had decided that they were not going to offer the complainant direct employment and gave no reasons. It is within their power to decide not to offer direct employment to the respondent’s employees. The witness asked the complainant for an updated CV as this an industry norm. She was waiting for an updated CV before she could assign him. The complainant was never dismissed by Manpower.

No penalisation as set out in section 13(1) occurred.

This complaint should not be upheld.

CA-00031641-001. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

I have been asked to accept that section 6 (1) of the Act of 2012 entitles the complainant to the same rate of pay as those enjoyed by the Hirer and doing the same work.

Section 6 (1)of the Act of 2012 states

“Subject to any collective agreement for the time being standing approved under section 8 , an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment”.

The respondent states that there are no comparators as there was no agreed duration for the training period after which an employee would be assessed for transfer into the direct employment of the Hirer.

It is accepted that he was doing the same work. The only barrier put up to deny him the same rate of pay is the fact that he was an ’unofficial’ trainee engaged on a training period or on an entry grade of indeterminate length from which he might never emerge or from which he might be deemed unsuitable for transfer into the Hirer’s employment as a direct employee- again after an indeterminate period. This is a manufactured and unconvincing obstacle impeding the complainant’s entitlement to the same pay as that paid to direct employees of the Hirer doing the same work.^

The evidence of the witnesses that employees of the respondent generally transfer after 3-4 months, the uncontested evidence of the complainant concerning assurances given to him by the Hirer’s manager during his induction period in April 2019, the uncontested evidence of the complainant’s assertion about another colleague transferring, plus the uncontested evidence of the complainant’s persistent questioning about when he was scheduled to transfer into the direct employment of the Hirer all indicate that a 3-4 month period was the de facto period of training after which there could be no reason to pay a lower rate to the respondent’s employees relative to those of the Hirer.

I find that this element of the complainant’s complaint is well founded. I find therefore that the complainant is entitled to the difference between the rate of pay (as defined by s.1 of the Act) that he received(€10.50 per hour) and that paid to comparable employees of the Hirer (€11.29 per hour) in respect of the time worked between 11 September when he asked for this rate and 23 October 2019 when his employment ended. This date of 11 September was a distance of over 4 months from the commencement of his employment on 24 April 2019. The sum to be paid to the complainant is €184.86

CA-00031641-002. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

The obligation to inform the complainant of vacancies is found in Section 11 of the Act of 2012.—

“ A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position”

The respondent is therefore not liable.

I do not find this complaint to be well founded.

CA-00031641-003. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

The complainant states that he was entitled to the same protections against bullying and harassment as the direct employees of the Hirer as provided for in section 6 of the Act of 2012.

This is not listed in the condition of employment in section 6 of the Act of 2012.

The respondent does have a policy on Dignity in the Workplace. The complainant did not activate this agreed procedure with his employer concerning the alleged bullying treatment by his supervisors who were employees of the Hirer’s. The respondent cannot therefore be held liable for the treatment of the Hirer’s employees towards the complainant.

The complainant did raise what he called the threatening statement of the Respondent Manager who had responsibility for the account with the Hirer. It appears that the respondent did not follow up on this complaint. But the remedy for that does not lie within this statute.

I do not find this complaint to be well founded.

CA-00031644-001. Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

It is not contested that the complainant raised what he believed were his entitlements under the Act of 2003 with the respondent. These entitlements included the right to the same rate of pay as paid to direct employees of the Hirer doing the same work – the comparable permanent employees and the right to a medical and performance review prior to transfer.

Having raised these entitlements the complainant contends that he was penalised. The complainant’s contract signed by him and dated 17/4/2019 did not entitle him to transfer to the Hirer after 3 months. It is classified as temporary. The complainant was not dismissed by the respondent. His own evidence is that after the 23 October he disengaged from the Respondent and is employed elsewhere. But how and why his assignment with the Hirer ended is far from transparent.

However, in order to invoke the penalisation provisions contained in section 13(1) of the Act of 2003, the employee must be a fixed term employee.

Section 2 of the Act of 2003 defines a fixed-term employee as

” a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event

“contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);

The complainant’s contract does not comply with the provision set out in section 2 above and the complainant cannot therefore invoke the entitlements found within this Act.

I do not find this complaint to be well founded.

CA-00031641-001. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

I find that this element of the complaint is well founded. I require the respondent to pay the complainant the sum of €184.86.

CA-0031641-002. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

I do not find this complaint to be well founded.

CA-0031641-003. Complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

I do not find this complaint to be well founded.

CA-00031644-001. Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

I do not find this complaint to be well founded.