Complainant

Respondent

Parties

Brendan  Dempsey

Itl Recruitment Ltd

Representatives

Audrey Goode

Byrne & O'Sullivan Solicitors LLP

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-00043238-001

24/03/2021

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

CA-00043238-002

24/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00043238-003

24/03/2021

This complaint is linked to ADJ-00032678.

The Complainant submitted that he was an agency worker, employed by the Respondent and assigned to work for another organisation (the hirer).

He submitted that he was employed by the Respondent managed on a day-to-day basis by the hirer.

CA-00043238-003 was withdrawn at the hearing.

The Complainant's case was that he was employed by the Respondent and assigned to work with Fastway Couriers on 5 November 2020 as a General operative at an hourly rate of €12 per hour.

The Complainant gave direct evidence of his dealings with the Respondent prior to his placement with the hirer.  He engaged with a member of the Respondent’s staff and had her mobile number.  He did not have access to a PC or email.  He was required to complete a manual handling course, which he did at his own cost.

The Complainant was provided with information as to where to attend to commence work with the hirer and did so on 5 November 2020.  He was given the name of a manager with the hirer to contact.

He described how he entered the hirer's depot, received his steel toe capped boots and high visibility vest and underwent the limited induction process carried out by the hirer.  The Complainant produced the hirer's vest provided to him on his first day of employment.

He described how he was provided limited instructions but was able to carry out the work required. He attended at the hirer’s workplace continuously between 5 November and 26 November 2020. This was during the Covid pandemic and the Complainant complied with the hirers Covid procedures and submitted to a temperature assessment each day.

He explained the manual work he did for the hirer, sorting parcels into different county crates and wrapping loads. He described how the workplace was extremely busy and how he had different managers all the time.

During this time, the Complainant telephoned his contact with the Respondent, but she never answered his call.

The Complainant enquired with the hirer as to his wages. He was told by the manager that his wages were not "his problem".

Following this altercation, he ceased attending at the hirer's premises.

As the Complainant did not receive a reply from his contact with the Respondent, he took legal advice.

At the hearing of the associated case, the representative of the hirer confirmed that the description of the depot and the work routine carried out by the Complainant reflected its workplace.

The Respondent advised that the member of staff dealing with the Complainant was no longer in employment with it and not available to give evidence to the hearing.

It submitted that no offer of employment had been made to the Complainant and that the onboarding process had not been completed to place him with the hirer.

It disputed the working pattern described by the Complainant and submitted that had the Complainant been employed by it, he would not have been required to work 21 days straight without a break.  It explained that had the Complainant been employed by the Respondent his rate of pay would have been €12.50 per hour and not the €12 the Complainant gave evidence of.

It submitted that had the Complainant raised the issue of payment of his wages after the first week with the hirer, this would have put it on notice of what had taken place. 

The Respondent found it difficult to believe that the hirer would have allowed the Complainant on site and work for 21 days without the requisite paperwork placing him with the hirer.

Because of the associated case, I had the benefit of the Complainant giving evidence on two separate occasions on the same facts. I found him to be a credible witness and elements of the evidence he provided in relation to the associated case were corroborated by the hirer.

The Respondent submitted evidence which was hearsay and could not be tested under cross examination. 

I accept the evidence of the Complainant that he was hired by the Respondent and placed to work with the hirer.  This form of placement meant that the Complainant was managed by the hirer on a day-to-day basis. I accept the evidence of the Complainant that the workplace in which he worked was extremely busy.  The Respondent itself accepted that there could have been dozens of temporary workers placed with the hirer on a temporary basis during this time. 

While it is unusual in 2020 to have a worker, who does not have access to email, I accept that the Complainant did not have email access and advised the Respondent accordingly. He dealt with the Respondent by telephone only. 

CA-00043238-001

I find that this case is well founded. I find that the Complainant worked for the Respondent for a period of 21 days on a 12-hour shift. This equates to 252 hours at a rate of €12.00 per hour.  The wages due to the Complainant amount to €3,024.00.

CA-00043238-002

I find this complaint to be not well founded.  The Terms of Employment (Information) Act 1994, as amended by the Employment (Miscellaneous Provisions) Act 2018 obligates an employer to provide employees with certain essential information within five days after the commencement of employment.  However, the Complainant was not in continuous employment with the Respondent for more than one month.

CA-00043238-003

This was withdrawn by the Complainant at the hearing.

Agency worker