Complainant

Respondent

Parties

Amanda  Craddock

Department of Housing, Local Government and Heritage

Representatives

Cillian McGovern BL instructed by Lara Kennedy Jones, Crushell Solicitors. 

Brian Murray BL instructed by Karen MacNamara, Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048204-001

17/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048204-002

17/01/2022

The Complainant was employed as a legal secretary, employment commenced on 13th March 2000 and ended on 10th September 2021.

This complaint was received by the Workplace Relations Commission on 14th January 2022.

The matters to be decided are as follows:

1.       Was the Complainant dismissed or made redundant and

2.       Who was the Complainant’s employer?

Claim under the Redundancy Payments Act

The Employee in this case was employed from the 13th of March 2000 to the 10th September 2021 at a rate of €650 per week.

The employeeworked for the Mahon Tribunal in Dublin Castle. The Employee in 2000 had been sent to an interview to the Tribunals Offices by Head-Hunt International an Agency.

The Employee was paid by the Agency.

Section 2 of the Redundancy Payments Acts 1967 describes the employer as;

" 'Employer' means in relation to an employee the person with whom the employee has entered into or for whom the employee works under (or where the contract of employment has ceased, entered into or worked under) a Contract of Employment, subject to the qualification that the person who under a Contract of Employment referred to in Paragraph (b) of the Definition of the Contract of Employment is liable to pay the wages of the individual concerned in respect of the worker services concerned shall be deemed to be the individual's employer".

The Unfair Dismissals (Amendment) Act 1993 in Section 13 for the purposes of the Unfair Dismissal Legislation, provides that an individual shall be deemed to be an employee employed by the third person under a contract of employment where the person was engaged through an agency for the purposes of the Unfair Dismissal Acts. That Section does not appear to amend the provisions of the Redundancy Payment Acts and therefore it is contended that the position on it is that the Agency, in this case Head-Hunt International would be the Employer.

The Complainant has brought two complaints against three named Respondents. All complaints seek the same relief, under section 8 of the Unfair Dismissals Act, 1977 and under section 39 of the Redundancy Payments Act, 1967, namely that the Complainant was unfairly dismissed and/or that the Complainant was made redundant and is entitled to a redundancy payment.

This Respondent believes the true nature of the Complainant’s claim is her entitlement to a redundancy payment and more particularly the party legally obliged to pay her redundancy.

It is noted that the Complainant’s written submissions do not advance a claim for unfair dismissal but focus solely on the redundancy claim.

The Complainant worked as legal secretary for the Tribunal of Inquiry into certain Planning Matters and Payments (“the Mahon Tribunal”) since March 2000.

The Complainant’s complaint against this Respondent is misconceived and this Respondent had no employment relationship with the Complainant that could give rise to the above claims.

The Mahon Tribunal was established by the Minister for the Environment and Local Government in November 1997 and remains under the auspices of the Department of Housing, Local Government and Heritage.

The third named Respondent was renamed the Department of Housing, Planning, Community and Local Government with effect from 23rd July 2016 and the Environment functions were transferred to the newly titled Department of Communications, Climate Action and Environment from 22nd July 2016.

Accordingly, this respondent has no case to answer in these complaints.

The Complainant’s Employment and Role.

The Complainant worked as an agency worker employed by Headhunt International. Details of her employment were agreed between the Registrar of the Mahon Tribunal and Headhunt International.

At all material times the Department of Housing, Local Government and Heritage is the Department responsible for funding the Tribunal, the Department has always paid the agency, Headhunt International, upon receipt of invoices, and has never paid the Complainant directly.

All invoices received by the Respondent came from Headhunt International itself and not any named individual. No payments were made directly to the Complainant other than those payments made by Headhunt International.

The invoices from Headhunt International were “in respect of the Temporary Placement of Amanda Craddock”.

It is the Respondent’s position that the Complainant was never placed on the payroll of the Mahon Tribunal. The Mahon Tribunal was not an entity that had any corporate functions that enabled it directly to employ and pay people working on the administration aspects of the Mahon Tribunal. Accordingly, it engaged the services of Headhunt International to take on this role.

At all material times, Headhunt International was the party liable to pay the Complainant’s wages.

Position of Headhunt International.

It appears that the position of Headhunt International is that because Headhunt were not involved in the work that the Complainant carried out on a day-to-day basis, it is demonstrative that Headhunt International did not employ the Complainant. It is noteworthy that Headhunt does not dispute that it paid the Complainant her salary and made deductions for PAYE, PRSI and USC. In that regard, correspondence from the solicitor for Headhunt was received on 18th February 2022 and states:

“the Tribunal employee was accountable to it on a day-to-day basis in relation to the work she carried out and that our client had no involvement, whatsoever at any stage with her in that regard. Our clients only role was to provide a payroll service for the Tribunal in order to process the payments due to her and to make deductions for PAYE, USC and PRSI”.

Respectfully, it is submitted that the position of Headhunt International is misguided and contrary to the applicable legislation as set out. As stated above, at all material times, Headhunt International was the party liable to pay the Complainant’s wages.

The Complainant’s Submission.

The Complainant’s written submissions are clear and succinct. As can been seen therefrom, the Complainant expressly states that she was paid by the employment agency, namely Headhunt International.

The Complainant, having regard to the relevant legislation, expressly contends that it is Headhunt International who should be deemed to be her employer and thus the party responsible for paying her, her redundancy entitlements.

The Respondent agrees entirely with this submission and further submits that the liability and obligations of Headhunt International is clear in fact and in law.

The Relevant Legislation.

Under the Redundancy Payments Acts 1967 – 2014, the employer bears the cost of making the redundancy payments to its employees employed through Employment Agencies are eligible for redundancy. Where the Employment Agency pays the wages of the employee, it is responsible for making the statutory redundancy payment.

Accordingly, in this case, the agency, Headhunt International is patently responsible for making the redundancy payment.

CA-00048204-001  Complaint under section 8 of the Unfair Dismissals Act, 1977.

This was not a dismissal. The employment came to an end by reason of redundancy.

This complaint is not well founded.

CA – 00048204 – 002 – complaint submitted under section 39 of the Redundancy Payments Act, 1967.

The submission from the Complainant is very clear and straight to the point.

Section 2 of the Redundancy Payments Acts 1967 (as amended) describes the employer as;

"’Employer' means in relation to an employee the person with whom the employee has entered into or for whom the employee works under (or where the contract of employment has ceased, entered into or worked under) a Contract of Employment, subject to the qualification that the person who under a Contract of Employment referred to in Paragraph (b) of the Definition of the Contract of Employment is liable to pay the wages of the individual concerned in respect of the worker services concerned shall be deemed to be the individual's employer".

The conclusion I have reached in relation to this complaint is that the named Respondent was not the employer of the Complainant. The complaint is deemed not to be well founded.

CA – 00048204 – 001 – This complaint is not well founded.

CA – 00048204 – 002. The conclusion I have reached in relation to this complaint is that the named Respondent was not the employer of the Complainant. The complaint is deemed not to be well founded.