Complainant

Respondent

Parties

Rafal  Chojnacki

Aa Euro Recruitment Ireland Limited

Representatives

Noel Murphy , Daniel Snihur, Christina Diamant, Cork Operative Butchers   IWU

David O'Reilly O'Reilly Consultancy Group from May 9, 2022, Andrew Cody, Solicitor, Reidy Stafford prior to this.

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 

CA-00040981-001

13/11/2020

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

CA-00040981-003

13/11/2020

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

CA-00040981-004

13/11/2020

This matter was heard by way of 3  Remote Hearing days  pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

The Complainant presented at hearing March 3 and 4, 2022 as part of an 8-person test case grouping involving the above-named parties

Between March and November , 2020, the  Complainants Union, IWU had submitted an initial large grouping of  cases on behalf of employees of the Respondent Employment Agency but placed at a Hirer over a period of time .

These complaints were validated by WRC and assigned to me for Hearing.

On 12 July 2021, I wrote to both parties seeking an expression of interest in a proposed  Case Management Conference to explore the potential for the parties to agree case progression through an agreed nomination of 10  representative test cases.

On 5 October ,2021, I convened a Case Management Conference with the parties  consent.

I took a brief outline on the background to the cases and took note of the Respondent  stated objections to aspects of the claims on time limits and correct employer .

At that meeting, consensus was reached with the parties on the progression of the cases through an agreed nomination of 3 test cases from both the Union and the Respondent The parties concurred that Interpreters were required in the Romanian, Slovak and Slovakian languages and the WRC prepared  to secure these Personnel.

Both  Parties were requested to prepare written outline submissions.

What followed was a period of some inconsistency in the run up to the hearing date of November 22, 2021, Timelines for receipt of submissions were not met and the Respondent expressed an understandable frustration with the inconsistent approach adopted by the Union. At that time

 The Respondent did however lodge a written submission on 10 November 2021.

The Hearing set for November 22, 202 proved unsuccessful.

The Union expressed a desire to proceed without the attendance of two out of three of their nominated test cases on the basis that these complainants no longer wished to be recognised as lead complainants, but still wished to have their cases heard.

The Respondent expressed a large-scale disappointment in this outcome and clarified that they understood that some of these same  complainants wished to withdraw their cases before the WRC.

I sought to focus the parties into progressing this case to completion and together we identified a new agreed route in pursuance of that objective.

1 Any complainants who wished to withdraw their cases would be facilitated in this.

2 The Union was to clarify the complainants claims on overtime and omit references to penalisation in in their further submission.

3 The parties were to regroup to identify a field of 8 test cases (4 IWU, 4AA Recruitment) on behalf of the remaining cohort accompanied by strict deadlines for submission of documents. This cohort would participate fully in the reconvened hearing.

A number of the complainants subsequently withdrew their claims before the WRC, which included two of the nominated test cases from the union. The case file stood at 57 in January 2022.

4 ~A revised 8 test case names  were submitted by the parties, some of whom were previous constituents of the grouping.

I was unable to secure my requested submissions from the Union as they explained that a period of illness had occurred.

 The Hearing in the case was then listed for a two-day hearing with Polish and Romanian Interpreters available for translation in early March 2022.

In the absence of a written submission, from the Union, I informed the parties that the cases would be decided on evidence.

The complainant in the instant case gave evidence and was subjected to cross examination on March 3, 2020.

This case is conjoined with

1 ADJ 27816 Mr Gelu Ciulei

2 ADJ 27823 Mr Petru Boboc

3ADJ 27836 Mr Petru Draghici

4 ADJ 27882    Mr Petru Zidu

5 ADJ 30432   Mr Zoltan Gal

6 ADJ   30452 Mr Pawel Marszalkowski

7 ADJ 30466 Ms Kamila Pokropywna

During the latter part of the second day of hearing, the parties took some time to explore whether a mutually acceptable resolution was possible for the Test cases. which may have a potential to apply to the remainder of the grouping?

The parties requested  some  additional time to allow further exploration. I granted a temporary adjournment in the case

I reconvened the parties on three subsequent dates for case management conferences, culminating in a final engagement on 6 May 2022.

On that day, the  parties  both confirmed that they had benefitted from the time given and together with the Respondent Accountant had arrived at the  mutually agreed resolution. for all associated complainants.

The parties sought orders  in respect of the 8 Test cases on consent.  I was  informed that the parties had agreed to  a genuine compensation amount in each of the 8 test cases  in respect of an acknowledged  contravention  of the Protection of Employees (Temporary Agency Work) 2012.  agreed to this.

During the adjournment, I had set out and shared the names of the  57  live cases remaining on the WRC file ,inclusive of the 8 test complainants with the parties .  It now falls to the parties to agree on a raised variance of 52;57 complainants .

The Union subsequently re-affirmed  the Union commitment to the proposed course of cation on May 6, 2022 and this would cover 57 complainants in the case .

My decision below reflects the conjoined work of the parties and  is recorded on consent .

I wish to thank Mr Noel Murphy, Mr Jamie Murphy, Mr Daniel Snihur and Ms Christina  Diamant, IWU I also wish to thank Mr Andrew Cody and Mr David Reilly for all staying on board with the case and working together to bring this case to a mutually acceptable ending.

I wish the parties well for the future.

On 13 November 2020, the Complainant, a Polish National and General Operative with the Respondent Agency from April 2010 submitted 4 complaints

1 Terms of Employment CA-00040981-001

2 Industrial Relations CA-00040981-002 

3 Agency Working CA-00040981-003 and CA-00040981-004

The Union outlined that the complainant and his colleagues made up 90% of the staff on the Hirer site. The grouping was made up of 40 Romanian and 40 Polish/ Slovakian workers.

Historically the workers were self employed and they subsequently became direct employees of the Agency. This matter was not resolved between the parties .

The Workers were aggrieved by not being offered direct employment on the hirer site, they had issues with overtime pay and had a difficulty in how their accommodation fees were administered.

The Union were not officially recognised by the Respondent for negotiation purpose .

Evidence of the Complainant

The Complainant gave evidence that he had commenced work with the respondent on 6 April 2010 and he was dissatisfied with his initial contract as it was not precise.

He was offered work on the hirer site but did not accept it. He was unclear on dates but expressed some concern when new workers were hired at the Hirer site in particular in relation to over time .

The Complainant responded to the Respondent representative in stating that he had chosen to stay working with the Respondent.

He clarified that he was happy in his work and was treated fairly by the respondent. The Complainant was uncertain on the duration of his contract.

The Respondent representative outlined that the Respondent employed 270 workers across a Pan European setting.

Legacy issues on direct employment were resolved in December 2019 in the complainant’s favour.

Legacy issues on overtime were also resolved relating to a 9 month look back.

It was the Respondent case that the claims were unfounded  and  were leverage for union recognition on 90% density .  A bi lingual Contract of employment was exhibited.

Evidence of the CEO:

The CEO, Mr Larry Ryan gave evidence to the hearing on the working of the Pan European enterprise, and he gave an expansive account of the pathway taken by the employees to working in Ireland. He categorically denied any mistreatment of workers. He confirmed that the company provided accommodation to the workers

He was clear that the employees had not raised any grievances and there was shop steward available on the Hirer site. He outlined the Management structure of the Agency and their accessibility to employees on the hirer site.

He confirmed that the Respondent did not recognise the Trade Union, IWU.

Mr Ryan confirmed that the employees were paid in euros and denied any irregular or illegal deductions in pay. The contracts were not time limited

I had been requested to consider three live claims on behalf of the Complainant.

The Industrial Relations claim had been subject of an in time objection and had not been advanced to the Labour Court.

On May 6, 2022, Both  Parties Representatives  approached the WRC at case management  and confirmed that the complaints  had been resolved between the parties through the following approach .

In furtherance of the Complaints lodged by the Complainant as outlined above:

1 Both parties accepted that a contravention of Section 6 of  the Protection of Employees (Temporary Agency Work) Act, 2012 on overtime had occurred for which a genuine compensation would be paid and all matters would then be compromised  between the parties .

2 Orders were sought to cover the 8 Test cases , named  at the head of this  Decision .

3 An order would issue under one complaint ,  for each of the 8 test cases .In this case CA-00040981-003 . All remaining claims were withdrawn .

4 Payment would issue  to the Complainant on receipt of the WRC order .. This would be reciprocated for all associated complainants to the 8 test cases and all matters before the WRC would be withdrawn.

 .  My jurisdiction, therefore, for the purposes of this claim rests  in Section 41 of the Workplace Relations Act, 2015 and Section 6 of Protection of Employees (Temporary Agency Work) Act, 2012, set out here.

As all other claims in this case are now withdrawn. The findings in this case reflect

 CA-00040981-003 alone.

I am an Agency Worker and did not receive the same basic working and employment conditions to which a comparable worker would be entitled

Decision under section 41 of Workplace Relations Act 2015

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 6, 11, 13(1), 14, 23 or 24 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer or hirer, as the case may be, to take a specified course of action (including reinstatement or reengagement of the employee or agency worker in circumstances where the employee or agency worker was dismissed by the employer or hirer), or

(c) require the employer or hirer, as the case may be, to pay to the employee or agency worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s or agency worker’ s employment.]

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.

The parties have consented to a mutually acceptable resolution in the case in relation to overtime. The parties have agreed to a payment of €2,955.74 as genuine compensation for a contravention of Section 6 of  the Act.

I find the claim is well founded.

CA-00040981-003

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

Section 25 Protection of Employees (Temporary Agency Work) Act, 2012, requires that I make a decision in relation to the complaint in accordance section 6 and the relevant redress provisions under that Act.

I order the Respondent to pay the Complainant €2,955.74 as just and equitable compensation for the contravention of Section 6 of the Act.

Compensation, Agency Working.