ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045717

Parties:

	Complainant	Respondent
Parties	Lourda Finn	Health Service Executive

Representatives

Self Represented

A Business Manager

Complaint(s):

Act	Complaint/Dispute 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-00056525-001	04/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00056525-003	10/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056525-004	10/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012	CA-00056525-005	10/05/2023

Date of Adjudication Hearing: 13/02/2024

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed.

Background:

The Complainant was described herself as a Medical Administrator and was engaged with the Respondent through a third party Agency and set out four complaints against the Hiring Employer.

Summary of Complainant’s Case:

The Complainant provided a background to her experience; she worked as a tour Operations Manager previously for two Tour Operators. She set up one in Ireland starting in a management role in 1989. She designed a reservation-manager booking system for tour operations. She also qualified in 1996 with the BSY as a nutritionist. She achieved eight distinctions in Medical Terminology and Business Administration. In 1998 she worked as a Practice Manger for a Medical Centre and trained all medical staff on GP Clinical which was approved by the Respondent. She computerised the Practice and made it paperless. She set up an obesity clinic in the practice with the company and it was one of the most successful in Ireland.

The Complainant set out her complaints as follows, and in most cases merged two (or more) Acts in defining her complaints. In general, the Complainant stated she was employed under the Temporary Agency Work Act, under an Agency/Worker agreement in terms of assignment. It stated her job was to provide services to the Hirer as a part time typist as a Grade III. The Complainant stated she was placed in a Grade IV role as a Medical Administrator position and provided the same services as her Job share. She stated she provided services for a further two Professors and both of these positions are Grade IV. The Complainant alleged she encountered many breaches directly and indirectly by the Hirer, which included, lack of fair procedures, the right to natural justice, paid less for doing the same work or similar work, not paid for double jobbing (which she alleged put her health and wellbeing at risk) and failure to follow the dignity and work grievance policies. The Complainant stated she encountered unfounded allegations, penalisation and was victimised for reporting breaches of the Temporary Agency Work Act. She alleged she was bullied and harassed. She alleged the right to disconnect was not respected and she was treated less favourably and with discrimination. The Complainant made a number of submissions with extensive appendices and the complaints broadly fell as follows;

1. Terms and Conditions of Employment (information)1994.

The Complainant alleged the Act was breached and that a Statement of written terms must be given after 4 weeks and the Hirer must furnish this. She alleged the Respondent failed to provide employee handbooks, health and safety, dignity at work and a grievance policies. The Complainant alleged the Hirer is deemed liable if it does not provide all relevant changes to the Agency and the Complainant did not receive the many changes in writing as per the agreement. Section 20 of the Agreement was breached by the Hirer by a failure to update information, in a failure by the Hirer to provide all information and any changes, then she stated the Hirer shall be deemed to be liable.

The Complainant alleged there was an implied contract between the Parties. She stated the Courts have regard to the following factor: did the Agency arrangement reflect the reality of the position. The Complainant alleged in her case the answer was no. She stated in Henry Denny and Sons V Minister for Social Protection, Judge Murphy J, concluded that the Appeals Officer was correct and the facts or the realities of the situation on the ground enabled him to reach the decision and ascertain the true bargain between the parties rather than rely on the ascribed labels.

Section 20.1 stated in the Agreement between the Agency (the Employment Business) and the Complainant “ The Employment Business reserves the right to make reasonable changes to the terms set out in this Agreement and/or the Assignment Confirmation Email. You will be notified in writing of anv change as soon as possible and in any event within one month of the change.”

2. Minimum Notice Act and Terms of Employment Act 1973

The Complainant alleged the Respondent failed to give one weeks’ notice, in breach of the Act, even when advised by the Agency that they must do so.

The Complainant stated that Ms Fahy, the Respondent Manager, told her on the 11/11/2022 that she had to leave with immediate effect and inform the Agency and revert to her by 3 pm that the Complainant had done so. The Complainant stated her job was given to Ms E the same day and Ms. E celebrated and announced to the office that she was starting in Ms. H service on the Monday. Ms. H was due back on the Monday.

The Complainant submitted an email from the Agency on the 10/11/2022 which states that if Ms Fahy does wish to extend the Complainants contract then she must give the Complainant a weeks notice.

3. Organisation of Working Time Act 1997 :

The Complainant alleged a failure by the Respondent to keep a record of increased hours to provide services simultaneously to cover two Grade IV positions. The Complainant alleged failure to keep a record of her overtime and provide the necessary forms so that the Complainant could submit for her extra work and hours, yet her colleague, a Respondent employee was provided with the forms and paid.

The Complainant alleged she was treated less favourably, it left her with feeling of being used and when she asked to be paid, the request was met with a cavalier and egregious attitude and the Complainant personally found this to be insulting and added further insult to injury.

The Complainant stated that there were written documents from Ms. Fahy to say that both Ms. H and the Complainant had agreed to increase their hours and that the Complainant would cover Prof. L services as well as her own job. This was at the request from Ms Fahy, at no time did the Complainant offer to work on her weeks off and she never went into work on Saturday from April to August while she worked as per normal. The Complainant stated she worked those Saturdays/Sunday with the full knowledge of Ms. Fahy to clear up chaos and backlogs that were part of other services and not part of her normal work. The Complainant stated she never had any backlogs while she worked for Prof P. The Complainant stated that when she finished for Prof. L she left no backlog for Ms. T who started this role with everything updated and cleared.

The Complainant stated she could put in for overtime on her worksheets and the over time sheets had to be provided by the Respondent and signed by Ms Fahy, The Complainant stated Ms. Fahy did not provide these forms and was very much aware that the Complainant had increased her daily hours from 8 to 5 every day. The Complainant stayed until 6 pm on one date and the reason for her email to Ms. Fahy was because staff had to inform her if they going to be alone in the office, (due to a fire) (Ms, D finished at 5 pm so the Complainant would have been alone from 5 to 6pm. The Complainant stayed on to finish work of another employee.

Ms Fahy denied that the Complainant worked on the 1/10/2022 but now says she gave her time off on the 5/10/2022 in lieu of worked hours on the 1/10/2022.

The Complainant stated she was not paid as follows;

Contacted for a grade 111 position for €13.00 per hour. The Complainant stated she was placed in a Grade IV position the rate of pay was €29.32 per hour therefore she was underpaid per hour.

Weeks worked as a Grade IV Prof P. from 25/4/2022 to 26/9/2022 and the Complainant covered two Grade IV positions simultaneously.

Saturday cover for Dr. N, Grade 3, 13th and 20th August. The Complainant worked 3 hours on Sunday 14th August for Dr. N. to clear a back log of typing. Time was given back on 26/9/2022 for 13/8/2022.

Hours worked for Prof L services on Saturdays as follows 10/9/2022 and 17/9/2022.

Hours worked on the 1/10/2022 was given off in lieu on the 5/10/2022.

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

The Complainant alleged Breaches and failures by the Respondent to comply with the Act.

The Complainant stated that an Agency worker is entitled to the same basic terms and conditions of employment as if they had been directly hired by the Hirer, this includes (but not exhaustive) equal treatment covering working and employment conditions. The Complainant advised equal treatment covers basic working and employment conditions included in the relevant contracts of direct recruits, which would normally mean terms and conditions laid out in standard contracts, pay scales, collective agreements or company handbooks. Where available this would be the same pay, holidays, etc as if the Agency Worker had been recruited as an employee or worker to do the same job. The Complainant stated there does not have to be a comparable employee (called a ‘comparator’). The responsibility lies with the Hirer to provide (from day one) all of the above entitlements and in their failure to do so then any claims would be against the Hirer.

The Complainant stated claims with regard to basic working and employment conditions could be against either the Hirer, or the Agency, or against both, depending on the nature of the breach and whether, for example, the Hirer had failed to provide information to the Agency. The Complainant alleged this is applicable in her case, that the Respondent had an obligation and duty to inform the Agency of all changes. The Complainant stated she was to be provided with written reasonable changes of any change as soon as possible and the Hirer failed to inform the Agency.

The Complainant understood that she would be protected for reporting the breaches of the Temporary Agency Work Act 2012. Once the Complainant reported the breaches such as pay, double jobbing, and bullying to the Agency. The Agency reported this to the Respondent and a direct decision was taken by the Respondent to dismiss the Complainant with immediate termination. The Complainant alleged she was victimised for making a disclosure of breaches of the Temporary Agency Work Act.

The Complainant stated that the EU Directive Act was established in accordance with Article 251 of the Treaty and is based on the fundamental rights of the EU citizen, in particular Article 31/41 of the charter provides for the respect of every workers right to health, safety and dignity and that wellbeing is now also being cited often in employment rights law. When the Complainant made the Respondent aware of the pressures of covering two Grade IV jobs simultaneously and fact that she did not have time to eat, it was completely ignored. The Complainant alleged there were serious breaches of health and safety. Under the Vicarious Liability Act the Complainant alleged the Respondent had a duty of care to protect the Complainants health, safety and wellbeing and failed.

The Complainant stated that pay is very exhaustively defined in the Act. The Act prescribes that the Agency worker is entitled to receive the same pay for a job or a similar job as if directly recruited by the Hirer. The Complainants stated a colleague was paid for her increased hours during the period that the Complainant also increased her hours from the 25/8/2022 to 26/9/2022. The Complainant stated she was not paid the same rate as her colleague for providing the same services as a Grade IV or overtime or Sunday hours.

The Complainant stated the Respondent was negligent by their failure to document and investigate her complaints, failed to follow their own policy under the Dignity at Work and Grievance procedures. The Complainant stated that harassment, and harmful communications and related offences is enshrined in legalisation since 10/2/2021.

The Complainant stated that Respondent had a duty of care under the Vicarious Liability Act to protect her Health, safety, and wellbeing, including not to penalise her for disclosure of breaches of the Temporary Agency Work Act TAW and bullying. The Complainant stated the Respondent is vicariously liable for the employees acts or omissions that occur during employment. The Complainant made some allegations that the Respondent knew that a staff member had already been found to be liable for misconduct in another Hospital and yet they failed to protect the Complainant. The Complainant alleged that double jobbing put the Complainants health, safety and wellbeing at serious risk which resulted in her having to be admitted to hospital and attending a Cardiologist and during her illness there was constant harassment by the Manager when the Complainant was on strict bed rest and to have no stress.

In the Supreme court and Vicarious liability (2009)6(2) IRLJ 43. Phelan V Coillte 1993I IRI, the court found that because the Hirer had control over the circumstances and the degree of control over the worker, vicarious liability would attach irrespective of the legal status of the worker. The Complainant alleged there was a lack of any empathy or duty of care.

Under the Work Relations Act 2015, section 20 (9) provides for a code of practice on the right to disconnect and the Complainant alleged this was not given to her.

The Complainant stated she was treated less favourably in regard to access to employment. On the 18th of August Ms Fahy emailed the Complainant on her days off and asked her to call her back and advised that Ms Y wanted to work part time, The Complainant offered her a solution that she would work her week off and cover the week off for her Job share. The Complainant was advised this was not an option as Ms Y was promoted to a Grade IV. The Complainant advised that at no time did she discuss her son with Ms Fahy regarding his education.

The Complainant stated that Ms. Y was not at work and the Complainant was on sick leave so she had no idea how anyone concluded that it caused interpersonal issues between them and as Ms Fahy had refused all requests for the Complainant to be heard and it was beyond the Complainants comprehension how she could ascertain and state otherwise.

With regard to Grade IV duties the Complainant stated the issue is not the duties, the issue is she was contracted as a Grade III but placed in a Grade IV position. She stated the Agency were not informed of the constant changes and the Respondent had an obligated duty to inform them. The Complainant stated she was paid 13.00 Euros per hour and her colleagues were paid 29.32 euros for the same and similar work and this was a breach of her rights.

The Complainant alleged Ms Fahy gave no thought to the level of work involved covering 2 Grade IV positions and the effect it would have anyone’s health. The Complainant emailed Ms. Fahy and told her “ I haven’t time to eat”. The Complainant alleged that Ms Fahy did nothing about it. The Complainant stated that when asked to view issues with OXI Department, Ms. Fahy did not bother to do anything.

The Complainant alleged that Ms. H did not have to go through the process/ procedure to apply for the Grade IV position as per the Respondents own policy which she alleged, was introduced to put a stop to cronyism and nepotism.

The Complainant stated that Respondent staff, in agreement with the Unions, are exempt from the Aptitude test. She stated Respondent staff have to take part in an interview usual through a CPL interview and then placed on a panel if they are successful in the interview. She stated the Respondent staff can then apply when Grade IV positions are advertised and take part in another interview. The Complainant alleged that the Ms. H Job was never advertised and this was a breach of the Respondent policy. The Complainant alleged Ms Y was given favourable treatment.

The Complainant alleged Ms Fahy was always aware of everything that was going on and that Prof X had also complained about the MOD Dept. The Complainant alleged Ms Fahy refused to hear her grievances on 27/9/2022 when she asked to be moved. The Complainant alleged she was abruptly cut short and told "no", that the Respondent failed to listen to her grievance on the 10/10/2022, failed to hear her on the afternoon of the 10/10/2022 after the Complainant had informed the Agency. The Complainant believes she was penalized and victimized by Ms. Fahy once she informed the Agency of the issues and breaches.

The Complainant stated Ms Fahy refused to give her a reference and told the Complainant to contact the Agency for a reference. The Agency offered to provide a reference but could not provide any information on her work as they are not in control of the day to day work and the Agency did provide a reference of her time.

The Complainant did not accept that Ms Fahy was shocked with the Complainants complaints and questioned why would she be shocked when she at all times failed to follow the Dignity at work and grievances policy of the Respondent.

The Complainant stated that an Agency worker is protected against being victimised as an Agency worker for reporting breaches of the Protection of Employees (Temporary Agency Work) Act 2012.This means the Hirer or Agency cannot penalise you through dismissal, unfair treatment or unfavourable changes in your employment conditions.

Summary of Respondent’s Case:

The Complainant was employed under contract by a third party Clerical Agency. Initially two complaints were lodged with the WRC on 20/04/2023, CA-0056130-001 & CA-00056130-002 and these were subsequently acknowledged by the Manager. These complaints were subsequently withdrawn on 08/05/2023.Following the withdrawal of the above two complaints, an additional 4 complaints in total were lodged with the WRC by the Complainant on 19/05/2023.

The Complainant was employed as an Agency worker by the Agency, as a grade III clerical officer in the Paediatric Department of University Hospital Dooradoyle, Limerick on a temporary basis commencing on 25/04/2022. The Complainant completed clerical officer duties and was required on an Agency basis up until 11/11/2022. The Complainant was paid by the Agency to the 21/11/2022. The Complainant was employed by the Agency and not directly with the Respondent. The Complainant did not hold a Respondent Contract.

The Complainant had been working in a job-sharing role, on a week on/week off basis when her Business Manager Ms. Fahy was advised by some of the Complainant ’s colleagues that the Complainant had allegedly been in contact with the Agency requesting work in another department on her week off. As a result, of the above, Ms. Fahy approached the Complainant to discuss if she would like to increase her hours to full time (35 hours a week) as another employee (Ms. Y) in the department had requested to reduce her hours. The Complainant had previously advised her employer, the Agency,of her interest to take up additional hours. Therefore, a direct swap was arranged to facilitate both of these clerical officer requests. Both parties were content with this arrangement, particularly the Complainant, as she advised Ms. Fahy, that her son was returning to college and she was very grateful for the offer of full-time hours. The Complainant commenced working full-time hours on 11/07/2022.

A few weeks prior to the change, the Complainant had called to Ms. Fahy’s office advising she would like to seek her advice. The Complainant advised Ms. Fahy that she had stayed back the previous evening to clear some of the work that she was doing for one of the Paediatric Consultants when Ms. Y had allegedly said to her she should not be staying back after hours as she was setting a precedent and the line manager would expect this from everyone. Ms. Y allegedly also said that as long as the Complainant continued to work back then this would prevent them from getting a locum in the department. The Complainant informed Ms. Fahy that she was very upset by this conversation and had advised her response to Ms. Y, was that she wished to stay back and clear her work. The Complainant advised Ms. Fahy that she had noticed that prior to this alleged incident Ms. Y had been ignoring her and was not being very nice to her. The Complainant asked Ms. Fahy how she should deal with this situation. Ms. Fahy advised the Complainant that she suggest to meet her for a cup of tea and advise her as to how Ms. Y was making her feel. Ms. Fahy asked the Complainant if she was happy with the advice given to her to assist her with managing the situation with Ms. Y and she confirmed that she was. The Complainant also confirmed that she was well able to manage the issue on her own. Ms. Fahy advised the Complainant if the situation did not improve that the Complainant was to come back to her and she would continue to support her.

Following the meeting the Complainant advised Ms. Fahy that she had met with Ms. Y. Following a discussion as to how Ms. Y had made her feel, Ms. Y offered an apology. The Complainant assured Ms. Fahy that she was happy with the meeting with Ms. Y and felt that they had cleared the air between them. Ms. Fahy commended the Complainant for the way she managed the situation and recalled advising the Complainant to contact her if she needed any more support. Ms. Fahy did not hear anything further in relation to this matter.

A second interaction occurred with Ms. Y on 09/10/2022 via text message following a conversation at work the previous Friday. This text interaction caused interpersonal issues between the two parties, which impacted their relationship in the workplace. Mediation was arranged 28/10/2022 and was unsuccessful. Further to the above, the Agency met with the Complainant to discuss her assignment to the Respondent and her contract with the Agency. The outcome was a recommendation from the Agency to Ms. Fahy not to renew the Complainants assignment with the Respondent and the Respondent also notes that the Agency did not renew the Complainants contract.

Ms. Fahy recalled advising the Complainant during the conversation above that she had not requested the Complainant to stay back the previous evening to complete work. Ms. Fahy advised that going forward approval was required by the line manager if additional working hours were required. The Complainant acknowledged this and agreed. Following completion of the Complainant’s assignment with the Respondent via the Agency on 11/11/2022 the following complaints were lodged by the Complainant on 19/05/2023.

CA – 0005625-001; Complaint: Terms & Conditions of Employment,

The Complainant claims “change of contract, not updated or renewed”. The Complainant was employed as an Agency worker by the Agency, as a grade III clerical officer in the Paediatric Department of University Hospital Dooradoyle, Limerick on a temporary basis commencing 25/04/2022. The Complainant completed clerical officer duties as required on an Agency basis up until 11/11/2022. The Complainant was paid by the Agency to the 21/11/2022. The Complainant was employed by the Agency and not directly with the Respondent. The Complainant did not hold a Respondent Contract. The Complainant uploaded her hours on a monthly basis onto the Agency Time Management system as that is the process that applies to all the Agency workers. The issuing of Agency contracts is managed by the Agency.

The Respondent understands from the Agency that the Complainant’s contract was due to end on 21st November 2022, however the Complainant decided to finish up in the Paediatric Department on 11th November 2022. The Agency have confirmed the Complainant was paid up to and including her contract end date of 21st November 2022.

CA-00056525-003: Complaint: Minimum Notice & the Terms of Employment Act 1973-208 under section 12.

The Complainant claims “I did not receive my statutory minimum period of notice on the termination of my employment or payment in lieu thereof”.

The Complainant’s assignment with the Respondent, via the Agency, was due to end on 22nd November 2022, however the Complainant decided to cease her employment with UHL on 11th November 2022. The Agency have confirmed that the Complainant was paid up to her end date of 22nd November 2022. As noted above the Complainant was not a direct employee of the Respondent and did not hold a Respondent contract.

CA-00056525-004:under section 27 of the Organisation of Working Time Act, 1997 Complaint: “breach on pay on comparable worker”.

The Complainant claims excessive work and cover for 2 Professors clinics. The basic rate of pay that the Complainant was paid by the Agency was an agreement reached between the Agency and the Complainant. As a result of a backlog of work that arose within the department the Complainant offered to help out with the workload on this on her week off. Hours were returned for all hours worked through the Agency system. The Complainant uploaded her hours on a monthly basis onto the Agency Time Management system as is the process that applies to all the Agency workers. In addition, the Complainant requested to come at weekends to clear her work. Ms. Fahy responded to the Complainant’s email stating that she did not recommend working at the weekends, as there was no requirement to do so. Ms. Fahy was aware of her responsibility to ensure employees availed of adequate time off. This was approved on occasion and it is noted that the Complainant worked the following and received time off in lieu:

On 7th of September 2022, the Complainant emailed Ms. Fahy advising that she was working back. Ms. Fahy had not approved this. Ms. Fahy responded advising the Complainant to email her when she was leaving and also advising the Complainant that she could take the time back either the day after or on Friday.

On 8th of September 2022 @ 11.54, the Complainant emailed Ms. Fahy requesting that Ms. Fahy approve for her to come to work for a few hours and stating that she did not want payment and advising that she would take the time off at a later stage.

The Complainant attended work on Saturday 1st of October 2022 and emailed Ms. Fahy stating that she in work for a few hours. The Complainant had not requested approval to work on this day.

On 5th of October, the Complainant emailed Ms. Fahy requesting that she come in late. Ms. Fahy advised the Complainant that she had hours owed to her from working the previous Saturday 1st of October 2022 if she wished to take those and the Complainant agreed.

CA-00056525-005: Temporary Agency Work Act 2012

The Complainant claims, “I am an Agency worker and did not receive the same basic working and employment conditions to which a comparable worker would be entitled Protection of Employees (Temporary Agency Work Act, 2012). “ and “I was treated less favourably by the Employer to whom I am hired out as an Agency worker in relation to access to facilities and amenities (Protection of Employees (Temporary Agency Work) Act, 2012. “

At no stage during the duration of the Complainant’s assignment was the Respondent ever advised/informed by the Complainant that she felt treated less favourably than her colleagues.

Findings and Conclusions:

The Parties made written submissions in advance of the Hearing. The Parties also gave oral evidence to the Hearing.

The Complainant was employed as an Agency worker by an Agency as a grade III clerical officer and was assigned to the Hirer commencing on 25/04/2022 and her employment ceased on the 11/11/2022. The Complainant was paid by the Agency to the 21/11/2022.

The Complainant made various submissions which were very wide ranging and involved various documents, substantial information, emails, photographs, legal precedents, quoting various legislation etc and in some cases involved a lot of cross over between the complaints. The Adjudicator experienced considerable difficulty in assessing and co-ordinating the Complainants submissions due to the manner in which the complaints and submissions were submitted. It was clear to the Adjudicator that the complaints meant a lot personally to the Complainant. The summary set out above is the Adjudicators attempt to clarify the full nature of her complaints. It is important to note that the Adjudicator can only consider the complaints under the direct Acts submitted by the Complainant in the cognisable period (explained below). It is also important to note under the Act that the employment agency remains the employer of the agency worker and the obligations of the Hirer to the Agency Worker are set out very clearly in the Protection of Employees (Temporary Agency Work) Act, 2012.

Evidence of the Parties

The Complainant gave evidence to the Hearing that she left a full-time role to take up the Agency work. She advised she was contracted to work as a Grade 3 Medical Typist. She advised the Medical Administrative role was a Grade 4. She advised she was happy in the job. She stated the Respondent was obliged to inform her of all changes to her working conditions/terms. She advised the Job share she worked with from August 17th 2022 was grade 4. She advised this role was paid 29.32 Euros per hour (this was later amended to 21 Euros per hour). She advised there was a substantial difference in the rate to her rate she received from the Agency of 13 Euros per hour. She advised she was not on a fixed term contract and there was an obligation on the Respondent to give her one weeks notice on November 10th if they were not extending her contract. The Complainant advised she was not paid one weeks notice by the Respondent in lieu of no notice.

The Complainant advised she was not paid for 16 hours work on August 8th and September 8th (8 on each day), not paid for 3 hours work on each day of August 17th, 18th and October 1st. She advised she was not paid for one and a half days overtime for 4 weeks when per day at time and a half which amounted to 44 hours pay. She sought 420 hours pay at the higher rate and a difference of 10 Euros per hour which amounted to 9,528 Euros plus the other wages due which she costed at 5,328 Euros.

The Complainant alleged she was victimised and underpaid relative to her colleague for doing the same work. The Complainant alleged she had a right to disconnect and this was ignored on a number of occasions. She stated she had to get out of her sick bed to deal with queries from the Respondent. She advised she was in hospital at one stage when contacted by the Respondent and the Respondent would not accept the word of a colleague she was sick and did not ask her how she was.

The Complainant stated she did increased hours and was not paid for them.

The Complainant was cross examined by the Respondent and asked to confirm she was an employee of the Agency and had received a contract of employment from the Agency and the date of that contract was 5/4/2022. The Complainant confirmed she received a contract from the Agency and that that contract per section 14.3 stated the Respondent had to give the Complainant one weeks notice if they were terminating the contract. The Complainant was asked to confirm the contract stated she had to submit her hours of work to the Agency and the Agency was her Paymaster. The Complainant confirmed this was the method of recording hours and how it was done and stated the Respondent should also have recorded her hours.

The Complainant was asked to confirm she was told by the Respondent on 11/11/2022 that her contract would be ending on 21/11/2022 and that she left the Respondent on the 11/11/2022 without working her notice out. The Complainant accepted there was a meeting with Ms. Fahy on the 11/11/2022 and stated she was told she could leave with immediate effect. The Complainant stated she did not agree she was paid for her notice period and only became aware she was paid until the 22/11/2022 in 2023.

The Respondent stated the Complainant was hired as a Medical Typist and this was a code used by the Agency. The Respondent contested that the Complainant was in an Assistant Staff Officer position as alleged and the Complainant confirmed she did not have a supervisory role but that people came to her for information. The Respondent asked the Complainant to confirm she was pad on the first point (as normally) of the Grade 3 Scale at 26,113 Euros and this was the same as her Agency rate. The Complainant replied that Grade 4 started at 30,428 Euros and on 1/10/22 the rate was 30,928 Euros. The Complainant was asked was she aware the rates she was quoting were on a service related scale and that people with more service earned more. The Complainant stated she should be paid the same as full time staff and was asked by Ms Fahy from August 11th 2022 onwards to come into work and work for three other Doctors and that her hours were increased to full time around then. The Complainant was asked did she receive approval from the Respondent to work overtime and did she ever submit any overtime hours worked to the Agency. The Complainant advised she did not have access to overtime forms. The Complainant stated her hours started at 8.30am to 4pm and were increased to 9am to 5pm for August and for September.

Ms Fahy gave evidence for the Respondent and stated she was surprised and shocked by the Complainants allegation she was being victimised at work and advised the Complainant never brought this allegation to her while she was engaged with the Respondent. She advised Agency staff are paid 13 Euros per hour in line with all Agency Clerical staff employed and there were 12 other Agency staff employed at the time. Ms Fahy advised she has been a Manager for 23 years and never mixed Grade 3 and 4 work. Ms Fahy advised she had no sight of the Agency contract given to the Complainant until supplied in connection with the complaints. Ms. Fahy advised that she observes the right to disconnect and the Respondent had a policy on attendance and when someone is in sick leave they have a policy of keeping in touch. Ms. Fahy stated she was an involved party to the Complainants experience with other staff with the Respondent and issues outside of work lead to the Complainants dissatisfaction at work.

Ms. Fahy was cross examined by the Complainant and was asked to agree she was victimised by the Respondent and Ms. Fahy stated that she would not agree with that and there was no evidence of any victimisation of the Complainant. Ms Fahy was asked was it the Respondent policy to send emails outside of work hours and Ms. Fahy stated that while she may send an email outside of work hours this did not mean she expected a reply outside of work hours. Ms Fahy was questioned about sending emails to the Complainants private email and Ms, Fahy stated that she had to inform staff about changes. The Complainant questioned Ms. Fahy about contact relating to July 4th when the Complainant was out on sick leave and Ms. Fahy stated she did not know the Complainant was on sick leave and it was her duty to inform the Complainant about changes to her Line Manager. The Complainant stated she had submitted a sick certificate and would Ms. Fahy accept she had a duty of care to staff. The Complainant also stated that she was contacted on her week off on 17/8/2022 and that she had worked the weekend before and met Ms. Fahy the day before and they had a discussion about increased hours and there was not a need to contact her by private email. The Complainant raised other times when she was contacted by private email and Ms. Fahy stated there was never an issue raised before the WRC complaint about contacting the Complainant through her private email. The Complainant raised an issue about being contacted on October 17th when she was not in work and had supplied certificates from the Respondent Hospital and stated Ms. Fahy said it was her mistake to contact the Complainant. The Complainant stated her private number had been given to a Doctor to deal with a hospital issue and Ms. Fahy stated the phone number was not given out by her.

Findings and Conclusions under each complaint;

Before setting out my Findings, I will set out the requirements for notification of complaints applicable to the first three complaints (001/003 and 004) under Section 41 the Workplace Relations Act 2015;

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complainant quoted a vast amount of legislation and precedents in her submissions and therefore as a lay litigant had considerably researched the issues from a legal perspective. No request was made by the Complainant, orally or in writing, for an extension of any cognisable period due to reasonable cause and therefore the complaints are governed by Section 41.6 above.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 (CA-00056525-001)

The Applicable Law;

“3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

Findings;

The Complainant submitted her complaint to the WRC on May 4th 2023. It follows that the cognisable period comprehended by Workplace Relations Act 2015 Sec 41.6 is from the 4th November 2022 to the 3rd May 2023. The Complainants employment ceased on November 22nd 2022. As the breach alleged is a continuing breach, I deem it within the cognisable period.

There are two alleged breaches; firstly the Respondent did not supply a written statement of employment terms and secondly the Respondent did not notify the Complainant of changes made to her role and days/hours of work

The Complainant alleged that a Statement of written terms must be given after 4 weeks and the Hirer must furnish this. The requirement under the Act to provide written terms is within two months but that does not change the basis of the complaint. The Complainant alleged the Respondent also failed to provide employee handbooks, health and safety, dignity at work policy and a grievance policy.

The Complainant was provided with and by the Agency with a Agency Worker Agreement within the specified time period of two months of commencing with the Respondent. This has a lot of the elements of a contract of employment. Specifically in Clause 2.1 of the Agreement it states” This Agreement together with the Assignment Confirmation Email governs all Assignments under which the Agency Worker provides his or her services to the Employment Business from time to time and shall be read together for the purposes of the Terms of Employment Information Act.” The Complainant was also provided with an email from the Agency dated April 21st 2020 titled “Contract” setting out all the key elements required under the Act.

There is no legal requirement under the Act for the Hirer (The Respondent) to provide another contract/written statement of terms or to provide the documents /policies outlined by the Complainant. This is reinforced by the statement in the Agency Worker Agreement that states “and shall be read together for the purposes of the Terms of Employment Information Act.”

None of the policies/documents stated as not being provided by the Respondent are covered by the requirement in the Act in any circumstances.

With regard to the first element of this complaint the Complainant has not identified any breach of the Act by the Respondent. Accordingly, the Adjudicator finds that the first element of the complaint is misconceived in law and therefore cannot succeed.

With regard to the second element of the complaint, notification of changes to the particulars furnished, Section 5 of the Act is the relevant section. The Complainant stated she was to be provided with written notice of any change as soon as possible by the Respondent and the Hirer failed to inform the Agency.

Section 5. of the Act states “—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—(a) 1 month after the change takes effect”.

The Act is quite specific in that changes must be notified within a month in writing to “the particulars of the statement furnished by an Employer”.

The Complainant was an Employee of the Agency and was never an employee of the Respondent. The following was contained under the agreement between the Complainant and the Agency “The Agency Worker shall direct any questions in relation to the terms and conditions of an Assignment to the Employment Business.” Under the Act the Respondent did not have any legal requirement under the Act to give the Complainant written notification of the change to her hours of work as they were not the Employer.

With regard to the second element of this complaint the Complainant has not identified any breach of the Act by the Respondent. Accordingly, the Adjudicator finds that the total claim is misconceived in law and therefore cannot succeed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 (CA-00056525-003)

The applicable Law

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

“(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,”

Findings;

The Complainant referred the above complaint to the WRC on10th of May 2023. It follows that the period comprehended by the Workplace Relations Act 2015 Sec 41.6 is from the10th November 2022 to the 9th May 2023. The Complainants employment ceased on November 22nd 2022.The cognisable period is therefore from the 10th of November to the 22nd of November 2022 The Complainant ceased working at the Respondents premises on the 11th November 2022 and as the one week notice period was from November 15th 2022 to November 22nd 2022, .I deem the complaint within the cognisable period.

The Complainant was entitled to one weeks notice of the termination of her employment by law from her Employer and by her contract with the Agency. The Respondent informed the Complainant, through the Agency, on 10/11/22 that they would not be renewing her contract after 22/11/22 on the basis the role would now be fulfilled by a Respondent employee returning from leave. The Respondent informed the Complainant and the Agency, with more than a weeks notice they would not be extending the Complainants contract and the Agency paid the Complainant from 11/11/22 to 22/11/22 even though the Complainant was not at work. This payment in lieu of notice was provided for in the Agency Worker Agreement. There was an obligation under the contract between the Agency and the Complainant to give the Complainant a weeks notice.. There was no obligation on the Respondent under the Act, as it was not the Employer, to provide notice. In effect, this complaint is seeking to be paid twice for the same notice period. The Complainant has not identified any breach of the specific Act by the Respondent. Accordingly, the Adjudicator finds that the claim is misconceived in law and therefore cannot succeed.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 (CA-00056525-004)

The Applicable Law

“25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

Findings;

The Complainant referred the above complaint to the WRC on10th of May 2023. It follows that the period comprehended by the Workplace Relations Act 2015 41.6 is from the10th November 2022 to the 9th May 2023. The Complainants employment ceased on November 22nd 2022.The cognisable period is therefore from the 10th of November 2022 to 22nd of November 2022. The Complainant ceased working at the Respondents premises on the 11th November 2022 so in effect the cognisable period is one day.

The Complainant alleged that the Respondent did not keep proper records of her hours. The Complainant kept a record of her hours and submitted them to the Agency for payment. The Complainant alleged in her written complaint she was not paid for holidays due. The Complainant did not identify any holidays due at the Hearing and this is a matter properly between the Complainant and the Agency who employed the Complainant.

Based on Section 25 of the Protection of Employees (Temporary Agency Act) 2012 that the Complainant was not an Employee of the Respondent, I find that no responsibility rested with the Respondent under the Organisation of Working Time Act 1997 to keep records of work and therefore the Respondent is in not breach of the Act. Accordingly, the Adjudicator finds that the claim is misconceived in law and therefore cannot succeed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 (CA-00056525-005)

Schedule 2 of the Act states the following;

“(4) A rights commissioner (now an Adjudicator) shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.(5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.”

Date of referral and relevant periods

The Complainant referred the above complaint to the WRC on 10th of May 2023. It follows that the period comprehended by Act under Schedule 2 Clause 4 is from the10th November 2022 to the 9th May 2023. The Complainants employment ceased on November 22nd 2022.The cognisable period is therefore from the 10th of November 2022 to the 22nd of November 2002. The Complainant ceased working at the Respondents premises on the 11th November 2022.The Respondent stated the agency work ceasedwhen the Complainants contract was not extended as a result of another employee becoming available for clerical work. The Complainant stated it was the result of victimisation for bringing complaints under the Act to the attention of the Respondent. It falls therefore that the complaint can only relate to the days of the 10th and 11th of November 2022. No grounds for a delay in submitting the complaint were put forward by the Complainant, who initially had the benefit of legal advice when formulating her initial complaints.

The Complainant submitted complaints under sections 6 and 14 and 24.

Application of Act.

3.— “This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer.” The Complainant meets this requirement.

Findings;

The Complainant was engaged by the Agency under an Agency Worker Agreement. No evidence of an agreement between the Agency and the Respondent was supplied. The agreement states the Hirer is to be treated as the employer unless specified otherwise by statute. This is not an agreement between the Complainant and the Respondent and the Respondent was not a party to the Agreement. It is important to note that an Agency Worker does not become an employee of the Hirer under the Act but is entitled to specific benefits under the Act as if they were an employee of the Hirer. I conclude that this wording has given the Complainant a false sense that she was an employee of the Hirer. The Agreement commenced on April 25th 2002 for 8 weeks, was extended from 25/6/2022 to 25/8/2022 and again extended from the 26/8/2022 to 21/11/2022. In the various submissions made by the Complainant she made a number of complaints, some repeated, some not so clear and some outside the scope of the Act. The Complainant submitted a vast amount of documents in an attempt to support her case but failed to provide a coherent assessment of her complaints. The Complainant accepted that she may not fully comprehend the Act in her submission. I have attempted to summarise the complaints below. The purpose of the Act is to ensure that an agency worker is treated no less favourably than a comparable employee working as an employee for a hirer, in respect of those matters comprehended by the Act.

Breach of Section 6

The Applicable Law

Basic working and employment conditions of agency workers.

“6.— (1) Subject to any collective agreement for the time being standing approved undersection 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 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;”

Finding; The Complainant stated she should be paid as Grade 4 and not a Grade 3 for specified periods. She also alleged she was treated differently under this section by the Respondent not providing the Complainant overtime forms when she worked extra hours for a few weeks. The Respondent maintained as per above the Complainant never got approval for overtime hours and when she did work extra hours and her Manager gave her time in lieu. The periods which the Complainant claimed she should be paid Grade 4 and should have received overtime forms were not within the cognisable period and therefore require no further analysis as the alleged breaches are not within the cognisable period.

Breach of Section 14

The Applicable Law

14.—" (1) A hirer shall, as respects access to collective facilities and amenities at a place of work, treat an agency worker no less favourably than an employee of the hirer unless there exist objective grounds that justify less favourable treatment of the agency worker.

(2) In this section “collective facilities and amenities” includes—
(a) canteen or other similar facilities,
(b) child care facilities, and
(c) transport services.”

Finding; The Complainant made no written or oral submission regarding a breach under this Section and therefore I find there was no breach of Section 14.

Breach of Section 24

The Applicable Law

“24. Prohibition on penalisation by hirer

(1) A hirer shall not penalise or threaten penalisation of an agency worker 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) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act has been contravened,

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

(e) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(1A) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(2) If a penalisation of an agency worker, in contravention of subsection (1), constitutes a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the agency worker in respect of that penalisation both under Schedule 2 and under those Acts.

(3) In this section “penalisation” means any act or omission by a hirer or a person acting on behalf of a hirer that affects an agency worker 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 or dismissal (within the meaning of the Unfair Dismissals Acts 1977 to [2015]), or the threat of suspension or such dismissal,

(b) loss of opportunity to apply for a position of employment with the hirer,

(c) transfer of duties, change of location of place of work 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.”Finding: With regard to Section 24.1 and 24.2 of the Act none of the conditions outlined in these sections were advanced by the Complainant to the Respondent during her period of assignment and the first the Respondent knew of the issues claimed by the Complainant was when they received the complaint from the WRC, therefore it is difficult to comprehend how they may have infringed the Act during the Complainants period of assignment to them.

With regard to dealing with complaints for penalisation under Section 24.3 the Labour Court has established that a form of shifting burden of proof, similar to that in employment equality law, should be applied. Thus, the Complainant must establish a prima facie case that she was penalised for the events complained and they are covered under the Act. If that prima facie case is established then is for the Respondent to rebut these complaints. The Complainant alleged she had brought certain issues to the attention of the Agency or Respondent. The issues of alleged penalisation, included

a) The Complainants contract was terminated because she raised issues under the Act

b) not paying the Complainant Grade 4 for a portion of time she worked.

c) issues around the changing of work hours

d) not investigating a complaint against the Complainant

e) not investigating a complaint by the Complainant

f) not giving the Complainant certain procedures and policies (i.e. Dignity at Work and Grievance Procedure)

g) the Complainant was victimised for making a disclosure of breaches of the Temporary Agency Work Act

and (h) not respecting the Complainants right to disconnect.

The Complainant stated she should be protected for reporting the breaches of the Protection of Employees (Temporary Agency Work) Act 2012. Once the Complainant reported the breaches such as pay, double jobbing, and bullying to the Agency, they reported this to the Respondent and the Complainant alleged a direct decision was taken by the Respondent to dismiss the Complainant with immediate termination. There was no evidence provided to support this allegation. The Complainant did not submit any evidence that she brought breaches of pay to the Agency or to the Hirer. Also, the Complainant was brought in to cover for absence which in November ceased to be an issue for the Respondent as a permanent employee became available to do the work done by the Complainant and this was the primary reason for terminating the Complainants contract.

The Complainant alleged when the Complainant made the Respondent aware of the pressures of covering two Grade IV jobs simultaneously and fact that she did not have time to eat, it was completely ignored and there were serious breaches of health and safety. The only reference to anything remotely related to this complaint was an email from the Complainant stating once that she was too busy to eat. The Complainant has attempted to link some physical stress and illness to her time with the Respondent. None of the evidence provided gives any weight to this claim.

The Agreement signed by the Complainant with the Agency stated the following;

” You shall not be entitled to undertake and shall not be paid for duties inconsistent with your assignment to that post, regardless of whether you in fact retain additional qualifications, registrations or specialist skills for other non-assigned post

When undertaking an Assignment for a Client, the Agency Worker shall be required to complete such duties, under the direction, control and supervision of the Client, as are consistent only with that position. You shall not be entitled to undertake and shall not be paid for duties inconsistent with your assignment to that post, regardless of whether you in fact retain additional qualifications, registrations or specialist skills for other non-assigned posts.

At the end of each pay period the Agency Worker shall deliver to the Employment Business a timesheet signed both by the Agency Worker and by an authorised representative of the Client, confirming the number of hours/days worked by the Agency Worker pursuant to the Assignment.”

Therefore, under the agreement the Complainant signed with the Agency, the Complainant had no duty or expectation to take on any extra duties to a Grade 3 and if she did so it would have been prudent to get the written authorisation/agreement in advance of both the Respondent and the Agency.

With regard to working any overtime hours it was the Complainants responsibility (per above) to submit time sheets and if she worked overtime then she had to get the prior authorisation of the Client for payment. The Complainant never submitted for overtime via her time sheets to the Agency. The Complainant was also given time in lieu for overtime worked.

The Complainant stated the Respondent were negligent by their failure to document and investigate her complaints, failed to follow their own policy under the Dignity at work and grievance. The evidence of the Respondent detailed a private interpersonal issue, mainly outside of work, between two staff and they intervened and conducted mediation which was unsuccessful and the Complainant informed the Respondent the issue was subsequently resolved directly between the Complainant and the other person. There was no obligation under the Act to provide the Complainant with the Hirer policies, although of course it would be good to do so. There was no evidence to support that the Complainant made a formal grievance to her Employer or submitted a formal written grievance to the Respondent. There was no evidence of a grievance being raised against the Complainant by another person. The Respondent does have a policy on Dignity in the Workplace. The Complainant did not activate this agreed procedure with her employer or notify the Agency of a formal grievance concerning the alleged bullying treatment by her supervisors or other staff who were employees of the Hirer’s. The Respondent cannot therefore be held liable for the alleged treatment of the Hirer’s employees towards the Complainant.

The Complainant alleged she was victimised for making a disclosure of breaches of the Protection of Employees (Temporary Agency Work) Act. No evidence was provided by the Complainant that she brought any allegations of breach of the Act to the Respondents attention prior to the termination of her contract so it is not conceivable she could have been victimised if no complaints were raised.

The Complainant stated that under the Work Relations Act 2015 section 20 (9) it provides for a code of practice on the right to disconnect and this was breached by the Respondent. There were a few events were the Complainant was contacted outside of normal work hours. The first, Ms Fahy apologised for and stated she did not expect a reply during work hours, another was for a medical emergency with a patient and the last was when the Complainant was out sick and the Respondent was making contact to see how the Complainant was. In summary, no complaint was brought under the Workplaces Relations Act 2015, the right to disconnect is not included in the Protection of Employees (Temporary Agency Work Act, there was a logical explanation to each event and all the events happened outside the cognisable period.

As an entitlement to the use of a grievance procedure is not one of the ‘basic working and employment conditions’ of employment as defined by Section 2 of the Act, the Adjudicator must find that such a provision is not envisaged by the scope of the Act.

Schedule 2 of the Act provides that a Rights Commissioner or (Adjudicator) when dealing with a Complaint under the Act, shall do one or more of the following:-

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

(b) require the employer to take a specified course of action (including reinstatement or reengagement of the employee in circumstances where the employee was dismissed by the employer), or

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration in respect of the employee’s employment”.

Having assessed the overall situation and complaints under this Act, I find that the Complainant has not established a prima facie case of penalisation and the complaint under the Act 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.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 (CA-00056525-001)

The Adjudicator finds that the claim is misconceived in law and therefore cannot succeed,

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 (CA-00056525-003)

The Adjudicator finds that the claim is misconceived in law and therefore cannot succeed.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 (CA-00056525-004)

The Adjudicator finds that the claim is misconceived in law and therefore cannot succeed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 (CA-00056525-005)

The Adjudicator finds that the claim is not well founded

Dated: 10-04-2024

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Agency Worker