ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028779

Parties:

	Complainant	Respondent
Parties	Tania Begley	CPL Solutions Ltd

Representatives

Self

Mary-Jayne Andrews

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038419-001	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038419-002	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038419-003	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038419-004	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000	CA-00038419-005	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012	CA-00038419-006	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038419-007	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00038419-008	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00038419-009	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00038419-010	16/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012	CA-00038419-011	16/06/2020

Date of Adjudication Hearing: 06/09/2021

Workplace Relations Commission Adjudication Officer: Maria Kelly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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. The matter was heard by way of remote hearing pursuant to the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. I explained to the parties the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24 and gave them the opportunity to consider the changes. The complainant and respondent indicated they understood the procedural changes and wish to proceed with the hearing.

Background:

The complainant was a temporary agency worker assigned to a client organisation as a surveillance assistant from 17 September 2019 to 09 April 2020. The normal weekly hours of work on the assignment were 37 hours at a rate of 14.58 per hour, increasing to 14.65 per hour, from January 2020. The complainant’s claims relate to underpayment of basic pay, underpayment for annual leave as a period of sick leave was not included in the calculation, no notice of termination, no payment in lieu of notice and penalisation for trying to make a complaint.

The respondent disputes these claims in their entirety.

Summary of Complainant’s Case:

The complainant submitted 11 complaints.

Payment of Wages Act, 1991

There are two complaints submitted under Section 6 of the Act. The first complaint of non-payment of wages due relates to overtime time worked. The complainant claims payment for 9.22 hours of overtime worked in February 2020 for which no payment was made. The complainant claims payment for having to be available for work in December 2019 and January 2020. The total amount claimed is €1310.20. In addition, the complainant claims €353.80 for holiday pay not received.

The second complainant relates to not receiving the appropriate pay in lieu of notice of termination of employment. The complainant claims €542.05.

Organisation of Working Time Act, 1997

There are two complaints submitted under Section 27 of the Act. The complainant claims to not have received the correct paid annual leave entitlement. The complainant asserts that periods of sick leave were not taken in account when the annual leave entitlement was calculated.

The complainant claims not to have been paid for 25% of the time ze was required to be available for work that did not then arise.

Penalisation

The complainant submitted three complaints of penalisation. The complaints are made under the National Minimum Wage Act, 2000, the Protection of Employment (Temporary Agency Work) Act, 2012 and the Terms of Employment (Information) Act 1994. The complainant submits ze was penalised for trying to make a complaint and asking for the formal complaint procedure from the respondent. The complainant asserts the penalisation resulted in dismissal from the respondent.

Minimum Notice and Terms of Employment Act, 1973

The complainant submitted three complaints under Section 12 of the Act. The complainants relate to not receiving statutory minimum notice on the termination of employment and not receiving all rights during the relevant notice period.

Protection of Employees (Temporary Agency Work) Act, 2012.

The complainant claims not to have been informed about vacant positions.

Summary of Respondent’s Case:

Preliminary Issue

The respondent submits that the complainant has named the incorrect respondent on the complaint form submitted to the Workplace Relations Commission. The employer named on the form is CPL, trading as CPL Office Support. The respondent submits that, as evidenced in the Statement of Main Terms and Conditions and payslips the complaint was employed by CPL Solutions Limited.

Payment of Wages Act, 1991

The respondent submits that no unlawful deductions of wages occurred in line with the remuneration stated in the complainant’s contract. At no point had the complainant received a salary below her contractual salary.

The respondent acknowledges a small discrepancy where the complainant was underpaid for 0.8 of an hour and overpaid for 0.2 of an hour. The complainant is owed payment for 0.6 of an hour.

The respondent contends that the wages properly payable to the complainant were the wages advised in the contract of employment and no deduction, as defined in Section 5 of the Act, has been made.

Organisation of Working Time Act, 1997

The respondent stated that the complainant was due the same annual leave entitlements as direct hire employees of the client organisation. The client provides 28 days leave per year for a 37 hour working week. Their leave year is the calendar year. As the clients annual leave provision is above the statutory leave entitlement the respondent used a modified percentage of total days worked. The percentage used is 12.56%, calculated as follows:

251 working days per year minus 28 leave days per year equals 223 days

223 divided by 28 equals 0.1256 (12.56%)

12.56% of the total hours worked equals the leave benefit to the employee

The complainant worked 912.52 hours while on assignment with the client organisation. 12.56% of 912.52 equals a total of 114.61 hours. The working day is 7.4 hours. The leave available to the complainant was therefore 15.49 days. During the complainant’s assignment with the client 44.14 hours of annual leave were availed of and paid. The balance of 70.47 hours was paid in the final pay on 29 May 2020. The respondent contends that the complainant has been paid for all annual leave accrued during the assignment.

Penalisation

The respondent states that it did not subject the complainant to any penalisation whatsoever. However, if the alleged penalisation is the termination of the complainants assignment it should be noted that the assignment ended as the hirer could not facilitate the complainant to work remotely.

Further, due to the COVID-19 pandemic the respondent terminated the employment of several temporary agency workers.

The respondent contends there is no evidence of a causative link between any action of the complainant and any alleged penalisation.

Minimum Notice and Terms of Employment Act,1973

The respondent rejects the claim that the complainant was not paid one week’s notice as per the contract of employment. The complainant was paid for 37 hours at €14.65 per hour, in lieu of notice, on 08 May 2020.

Protection of Employees (Temporary Agency Work) Act, 2012

A claim submitted under Section 25 of the Act in relation to an alleged failure of the hirer to inform the complainant of a vacant position. The respondent as the employment agency is not liable for this claim.

The respondent highlighted that the Workplace Relations Commission carried out an inspection of CPL Solutions Ltd for the purpose of monitoring compliance with certain statutory employment rights and no breaches were detected.

The respondent submits that the claims made by the complainant are without merit and therefore must fail.

Findings and Conclusions:

Preliminary Issue

The complainant named the employer on the complaint form as CPL trading as CPL Office Support. The respondent submits that, as evidenced in the Statement of Main Terms and Conditions and payslips the complaint was employed by CPL Solutions Limited. The respondent submits that as the incorrect employer was named on the complaint form the adjudication officer does not have jurisdiction to hear these complaints.

I was provided with a copy of a document headed ‘Statement of Terms of Employment of Temporary Workers’. This document was provided to the complainant at the commencement of the engagement. The document is headed CPL Office Support and the first sustenance states:

“In these terms of engagement, between the agency CPL Office Support (the ‘Company’) and the Temporary Agency Worker, the following shall apply…”

“These terms of engagement constitute a contract for temporary agency work between CPL Office Support and the Temporary Agency Worker and govern all assignments undertaken by the Temporary Agency Worker whereby he/she will be assigned to provide service to the clients. The Temporary Agency Worker will be assigned to work for a client of the Company (the Client)”

The document sets out terms the terms of engagement and at the end it states:

“If the Temporary Agency Worker is agreeable to accepting the above conditions, they should confirm acceptance on the duplicate of this letter and return it to CPL.”

There is space for the signature of the worker and signature of a person “on behalf of Cpl Resources plc”

The document mentions CPL Office Support, CPL and Cpl Resource plc but, contrary to the submission of the respondent, at no point is CPL Solutions Ltd mentioned.

I accept that the pay slips provided to the complainant all have CPL Solutions Ltd named as the company but in my opinion, it is more likely an employee would look to their terms of engagement than their pay slip to discover the correct name of the employer.

The respondent cited the decision of the Labour Court in Travelodge Management Ltd v Wach EDA1511 to support the submission that the adjudication officer did not have jurisdiction to hear the claims. I do not accept that submission is correct as the facts of the Wach case are different. That case involved an appeal to the Labour Court to substitute a respondent in circumstances where there was no appearance by a respondent before the Equality Tribunal and the respondent at the appeal claimed it never employed the complainant.

In the instant case the complainant is not represented. It is understandable, based on the Terms of Employment document, that the respondent is named as CPL trading as CPL Office Support. The correct respondent was on notice of these complaints and had the opportunity to appear to present to me any information relevant to the complaints. The matter of the name of the correct respondent was not raised by the respondent until the hearing of the complaints.

I note the decision of the Labour Court in Ballarat Clothing Ltd v Aziz EDA151 where, adopting the reasoning of Hogan J in O’Higgins v University College Dublin & The Labour Court [2013] IEHC 431, held that not to allow an appeal for a technical reason where the correct respondent was aware from the commencement of the case that an error had been made and acknowledged it would suffer no prejudice by being named as the correct respondent would amount to a grossly disproportionate response and deprive the appellant of the substance of her right to have the complaint heard and decided on its merits.

Taking note of the above decisions, the fact that the correct respondent was on notice of these complaints, had the opportunity to appear at the hearing and present any information relevant to the complaints, and did so appear, in my opinion the respondent would suffer no prejudice by the inclusion of the correct name on the complaint form. Because of an understandable error, given the information contained in the Terms of Employment document, the complainant should not be deprived of the opportunity to have the complainants heard and decided on their merits. I am therefore amending the name of the respondent from CPL to CPL Solution Ltd. and deciding I do have jurisdiction to hear these complaints.

CA-00038419-001

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

On the complaint form the complainant claimed to have been underpaid in the amount of €1310.20. No details of this amount were provided on the complaint form. At the hearing the complainant claimed to be due payment for 9.22 hours overtime worked in February 2020, together with a claim for payment for days when required to be available for work.

The complaint was received by the Workplace Relations Commission on 16 June 2020. The cognisable period is therefore 17 December 2019 to 16 June 2020. The dates provided at the hearing, when the complainant claimed to have been required to be available for work, were 21 and 22 (Saturday and Sunday), 26,27,28,29 (Saturday and Sunday), 30 and 31December 2019 and 01, 04 and 05 January 2020 (Saturday and Sunday). The complainant did not work on any of these dates.

The respondent asserted that there was no provision in the assignment agreement for an on call arrangement and that the complainant was not required to be available for work. In addition, the complainant had been paid the wages properly payable for the hours worked.

The respondent provided me with copies of the complainant’s pay slips. I note the following payments were made:

Week ending 22 December 2019 payment for 30.64 hours

Week ending 29 December 2019 payment for 15.20 hours plus two public holidays

Week ending 05 January 2020 payment for 14.36 hours plus one public holiday

The complainant provided no documentary evidence of being required to be available for work on the above dates. I am satisfied that the complainant was paid the wages properly payable to her for the above periods and that no deduction, as defined in Section 5 of the Act, was made.

The complainant was required to submit work hours each week to the respondent. In February 2020 an issue arose about the recording of overtime. The complainant provided copies of e-mail correspondence with the respondent attempting to have the correct payment made. The complainant was credible in her explanation of this issue and I accept that payment is due for 9.22 hours at time and a half.

I am satisfied that the complaint is in part well founded. The complainant is due payment of €202.60 in respect of overtime worked in February 2020 and €08.80 in respect of the discrepancy of 0.6 of an hour. I direct the respondent to pay the complainant €211.40 gross.

CA-00038419-002

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

The complainant claims ze did not receive the appropriate payment in lieu of notice of termination of employment. At the hearing the complainant confirmed that payment in lieu of notice from the hirer was paid. The complainant was paid for 37 hours on 08 May 2020. However, the assignment ended on 16 April 2020, but the complainant claims not to have been made aware that the end of the assignment would mean dismissal by CPL. The complainant claims that ze employment with CPL was ceased without ze knowledge and that no notice of dismissal was provided by CPL.

The claim therefor is for payment in lieu of notice for termination of employment with the respondent and not with the hirer.

The respondent submits that the complainant received payment in lieu of notice on 08 May 2020, which was for the termination of the assignment with the hirer, and no other payment was due to the complainant.

The Terms of Employment for Temporary Workers sets out the position about payment and notice. Paragraph 6 deals with remuneration and includes the following:

“Unless otherwise agreed, the Temporary Agency Worker is not entitled to payment either from the Company or a client in respect of time not spent on assignment, whether in respect of illness or absence or for any other reason with the exception or (sic) annual leave or public holidays. For the avoidance of doubt, no payment will be provided to the Temporary Agency Worker outside of their assignments.”

Paragraph 16 deals with notice of termination and includes the following:

“In the event of the termination of the contract the Temporary Agency Worker will be entitled to receive the appropriate period of notice as set down in the Minimum Notice and Terms of Employment Act.

The company may, in its discretion pay the Temporary Agency Worker in lieu of notice.”

It is clear for the above extracts from the agreement between the complainant and the respondent that no payments were to be made to the complainant other than payment arising from any assignments accepted. The payment in lieu of notice of the termination of the temporary agency worker contract is discretionary.

The complainant had one assignment that was terminated on 16 April 2020. Notice of termination of the assignment was given on 09 April 2020 and payment for in lieu for one week was made to the complainant. I find this complaint is not well founded.

CA-00038419-003

Complaint brought under Section 27 of the Organisation of Working Time Act, 1997

The complainant claims not to have received the correct annual leave entitlement while on assignment. It is contended that the calculation of annual leave did not include periods of sick leave.

The respondent asserts that annual leave was calculated in compliance annual leave provisions of the hirer and that complainant received all the leave entitlement.

Legislation

Section 19 of the Act provides the following:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual

leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.

Therefore, the maximum statutory annual leave in a year is 20 days. The complainant worked on assignment from 17 September 2019 to 16 April 2020 covering the statutory leave years 01 April 2019 to 31 March 2020 and 01 April 2020 to 16 April 2020. The assignment period was 30 weeks. Calculating the statutory leave entitlement for 30 weeks, using all three methods in Section 19, the maximum statutory entitlement is 12 days. Days of certified sick leave must be included in the calculation under Section 19 (1A).

The complainant’s leave was calculated on the higher leave allowance provided by the hirer. The respondent provided a complete breakdown of the calculation and the amount of leave taken and paid for. The complainant received payment for 114.61 hours. This was acknowledged by the complainant. As a day was 7.4 hours the complainant received payment for 15.48 days which is above the statutory leave entitlement for the period of the assignment. The complainant has no statutory entitlement to annual leave above what is provided for in Section 19 of the Act, in this case 12 days. I find this complaint is not well founded.

CA-00038419-004

Complaint brought under Section 27 of the Organisation of Working Time Act, 1997

The complainant claims not to have been paid 25% of the time ze was required to be available for work that did not then arise. This claim relates to the period in December 2019 and January 2020 when the complainant claims to have been required to be available for work. The respondent rejects the claim on the basis that there was no requirement in the assignment for on call work and the complainant was never required to be on call.

Legislation

Section 18 of the Act provides:

(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours ("the contract hours"),

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to that week (whether or not the number of those occasions or the circumstances otherwise touching the engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in that

week).

(2) …

(3) ...

(4) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent of the hours for which such work has been done in that week,

then the employee shall, subject to this section, be entitled—

(i) in a case where the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be, or

(II) 15 hours,

(ii) in a case where the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be,

(5) …

(6) …

(7) References in this section to an employee being required to make himself or herself available to do work for the employer shall not be construed as including references to the employee being required to be on call, that is to say to make himself or herself available to deal with any emergencies or other events or occurrences which may or may not occur.

The dates provided at the hearing, when the complainant claimed to have been required to be available for work, were 21 and 22 (Saturday and Sunday), 26,27,28,29 (Saturday and Sunday), 30 and 31December 2019 and 01, 04 and 05 January 2020 (Saturday and Sunday). The complainant did not work on any of these dates. The complainant did not provide documentary evidence of any requirement to be available for work on the said dates.

The respondent provided pay slips showing the payments made to the complainant for the relevant weeks demonstrating that the complainant was paid for at least 40% of the normal working week in each week.

In addition, if there was a requirement to be on call for emergencies Section 18 (7) provides that references to an employee being required to make themselves available to do work shall not be construed as including reference to the employee being required to be on call to deal with emergencies.

I am satisfied, on the balance of probabilities, that the complainant was not required to be available for work over the Christmas and New Year period. Even if I am incorrect in that the complainant was paid for at least 40% of the normal working hours each week and for the public holidays that fell in that period. Therefore, a payment of 25% does not arise as claimed by the complainant. I find that this complaint is not well founded.

CA-00038419-005

Complaint brought under Section 24 of the National Minimum Wage Act, 2000

The complainant made no reference on the complaint form or at the hearing to any issue arising from the National Minimum Wage Act. As the complainant was being paid €14.65 per hour by the hirer, well in excess of the national minimum wage, I believe this complaint to have been ticked in error on the complaint form. I find the complaint is not well founded.

CA-00038419-006

Complaint brought under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

The complainant claims to have been penalised by the respondent for exercising ze rights under the Act. The complainant disputed the payments being made, in particular the calculation of pay for a period of sick leave and the calculation of overtime. The issues arose at the time of the first COVID-19 lockdown in March 2020. The complainant was told to isolate from 17 March until 01 April 2020. It was unclear whether a special payment available to direct employees of the hirer would apply to the complainant. Arising from the disputed pay issues the complainant made an internal complaint and requested the formal complaints procedure. Within a short time of making the complaint the complainant claims to have been penalised by not being considered for other opportunities for placement and by having the employment with CPL terminated.

Legislation

Section 6 of the Act provides:

Basic working and employment conditions of agency workers.

6.— (1) 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.

Basic working conditions and pay are defined in Section 2 of the Act as:

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

(a) pay,

(b) working time,

(c) rest periods,

(d) rest breaks during the working day,

(e) night work,

(f) overtime,

(g) annual leave, or

(h) public holidays;

“pay” means—

(a) basic pay, and

(b) any pay in excess of basic pay in respect of—

(i) shift work,

(ii) piece work,

(iii) overtime,

(iv) unsocial hours worked, or

(v) hours worked on a Sunday,

but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

Section 23 of the Act provides:

23.— (1) An employer shall not penalise or threaten penalisation of an employee

for—

(a) invoking any right conferred on him or her by this Act,

(1A) …

(2) …

(3) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

The complainant wanted to exercise the right to be treated to the same basic working and employment conditions as if employed by the hirer under a contract of employment. The complainant made complaints about pay. The complaints related to the entitlement and calculation of overtime pay and pay for a period of sick leave.

As is clear from the definitions contained in the Act the entitlement to basic working conditions includes overtime pay but does not include sick pay. The issue about sick pay was resolved and the complainant was paid, by the hirer, for a period from 17 March to 01 April 2020. This arose during the first COVID-19 lockdown when the complainant on medical advice had to isolate.

The complainant contends that because the complaints were raised ze was penalised by not being considered for other assignments that ze was qualified for and after the assignment ended on 16 April 2020 have the contract with the respondent terminated.

The respondent rejects the claim of penalisation stating it did not subject the complainant to any penalisation whatsoever. The respondent stated that the termination of the complainant’s assignment was because the hirer could not facilitate the complainant’s requirement to work from home. Further, due to the circumstances arising from the COVID-19 pandemic the respondent terminated the employment of several temporary agency workers as they were unable to offer temporary assignments. The respondent contends there was no evidence of a causative link between any action of the complainant and any alleged penalisation.

It was clear at the hearing that the allegation of penalisation was against the respondent and not against the action of the hirer in ending the assignment. The allegation of penalisation concerns the treatment of the complainant regarding access to other assignments and the termination of the contract with the respondent. The complainant claims that no notice of termination was given, and no copy of a termination notice was provided to me by the respondent.

The Labour Court in Toni & Guy v O’Neill [2010] 21 E.L.R. 1 considered the issue of penalisation and what it is necessary for a claimant to establish to make out a complainant of penalisation. The Court held that “to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected …” “Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense the “but for” the claimant having committed the protected act he or she would not have suffered the detriment.”

Considering the above it is for the complainant to establish the “but for” attempting to exercise the right to the same basic employment and working conditions as if employed by the hirer ze would not have suffered the detriment alleged. So, was the contract with the respondent terminated because the complainant tried to exercise rights protected under the Act? The complainant was entitled to raise the issue of pay as this is protected by the Act, but note, sick pay is not protected. The issue for decision is whether this act by the complainant was the direct cause, the “but for” having made this complaint, of the termination of the contract.

It is common knowledge that in the months of March, April and May 2020 the country was in the first lockdown arising from the COVID-19 pandemic. Workers, unless essential workers, had to work from home, if that was possible. Clearly the hirer could not facilitate the complainant to work from home and so ended the assignment. The respondent stated that due to the unexpected changed circumstances and the difficulty in finding assignments for temporary staff it terminated the contracts of several temporary agency workers.

Having carefully considered the submissions, I am satisfied, on the balance of probabilities, that the termination of the complainant’s contract with the respondent was because of the changed and uncertain employment environment arising from the pandemic and not because of the complaint made by the complainant. I find that this complaint is not well founded.

CA-00038419-007

Complaint brought under Section 7 of the Terms of Employment (Information) Act, 1994

The claimant made no reference on the complaint form or at the hearing to any issue arising under the Terms of Employment (Information) Act, 1994.

Legislation

Section 6C of the Act provides as follows:

6C. (1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the

preceding paragraphs.

The complainant did not provide evidence of having invoked a right conferred by this Act. I find this complaint is not well founded.

CA-00038419-008

Complaint brought under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complainant claims that ze did not receive the statutory minimum notice on the termination of employment or payment in lieu thereof. The complainant stated that ze was not told by any representative of the respondent that the contract with the respondent was terminated. The complainant discovered this fact when checking the Revenue records. The complainant stated that the contract was terminated on 08 May 2020. The respondent stated that the contract terminated on 27 May 2020. I was not provided with a copy of a termination notice.

Legislation

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of

employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less

than two years, one week,

(b) …

I am satisfied that the respondent did not give notice of the termination of the contract between the complainant and the respondent as is required by Section 4 (2) of the Act.

12. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

Under the terms of the contract between the complainant and the respondent at paragraph 16 it states:

The company may, in its discretion pay the Temporary Agency Worker in lieu of notice.

The contract provides that no payment will be provided to a Temporary Agency worker outside of assignments. The payment in lieu of notice is, under the terms of the contract, discretionary. However, I am satisfied that in contravening the Act, by failing to give notice, the complainant was deprived of the consideration of a discretionary payment in lieu of notice. The loss suffered was the loss of the opportunity to be considered for a discretionary payment. I find the respondent contravened Section 4(2) of the Act and I direct the respondent to pay compensation to the complainant for the contravention in the amount of €542.05.

CA-00038419-009

Complaint brought under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complainant claims ze did not receive zir rights during the period of notice. The complainant did not provide details of the breach of any rights during the period of notice as no notice was provided by the respondent.

Legislation

Rights of employee during period of notice.

5.— (1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer.

SECOND SCHEDULE

RIGHTS OF EMPLOYEE DURING PERIOD OF NOTICE.

1. Subject to the provisions of this Schedule, an employee shall, during the period

of notice, be paid by his employer in accordance with the terms of his contract of

employment and shall have the same rights to sick pay or holidays with pay as he

would have if notice of termination of his contract of employment had not been given.

I have found that the respondent, in breach of Section 4(2) of the Act, did not give notice to the complainant of the termination to the contract. The relevant notice period occurred in May 2020. The complainant and the respondent give different dates as the date of termination. Under the terms of the contract no pay was due to the complaint outside of assignments. As the complainant was not, under the terms of the contract, entitled to payment outside of assignments and as no details of any other breach of Section 5 of the Act were provided by the complainant I find there was no breach of Section 5 of the Act.

CA-00038419-010

Complaint brought under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complainant on the complaint form included a breach of Section 6 of the Act. That section provides for the right of the employer to receive notice from the employee. I believe this section was ticked in error. I find there was no breach of Section 6 of the Act.

CA-00038419-011

Complainant brought under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

The complaint submitted a complaint concerning access to employment under Section 11 of the Act which provides:

Access to employment by hirer.

11.— 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.

This section of the Act concerns the duty of the hirer to inform agency worker of vacant position. It does not concern the employment agency respondent. The complainant claimed not to have been notified of vacancies of permanent posts arising with the hirer. The responsibility for informing the complainant about such vacancies lay with the hirer. I find this complaint against the respondent is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00038419-001

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

CA-00038419-002

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

CA-00038419-003

Complaint brought under Section 27 of the Organisation of Working Time Act, 1997

CA-00038419-004

Complaint brought under Section 27 of the Organisation of Working Time Act, 1997

CA-00038419-005

Complaint brought under Section 24 of the National Minimum Wage Act, 2000

CA-00038419-006

Complaint brought under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00038419-007

Complaint brought under Section 7 of the Terms of Employment (Information) Act, 1994

The complainant did not provide evidence of having invoked a right conferred by this Act. I find this complaint is not well founded.

CA-00038419-008

Complaint brought under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

I am satisfied that the respondent did not give notice of the termination of the contract between the complainant and the respondent as is required by Section 4 (2) of the Act. The contract provides that no payment will be provided to a Temporary Agency worker outside of assignments. The payment in lieu of notice is, under the terms of the contract, discretionary. However, I am satisfied that in contravening the Act, by failing to give notice, the complainant was deprived of the consideration of a discretionary payment in lieu of notice. The loss suffered was the loss of the opportunity to be considered for a discretionary payment. I find the respondent contravened Section 4(2) of the Act and I direct the respondent to pay compensation to the complainant for the contravention in the amount of €542.05.

CA-00038419-009

Complaint brought under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038419-010

Complaint brought under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038419-011

Complainant brought under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

Section 11 of the Act concerns the duty of the hirer to inform agency worker of vacant position. It does not concern the employment agency respondent. The complainant claimed not to have been notified of vacancies of permanent posts arising with the hirer. The responsibility for informing the complainant about such vacancies lay with the hirer. I find this complaint against the respondent is not well founded.

Dated: 7th April 2022

Workplace Relations Commission Adjudication Officer: Maria Kelly

Key Words:

Pay

Overtime pay

Holiday pay

Temporary Agency Worker

Penalisation

Minimum Notice