Complainant

Respondent

Parties

Conor  Ryan

Department of Public Expenditure & Reform

Representatives

Cliodhna Mcnamara, Forsa Trade Union

Ms Aislinn O’Donnell BL instructed by Ms Aideen O’Brien, Solicitor, CSSO.  

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-00052891-002

05/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00052891-003

05/05/2022

This complaint was received by the Workplace Relations Commission on 5th May 2022. The original complaint named three respondents. Three files were created as follows:

ADJ – 00039176 – named respondent – Commission of Inquiry into Child Abuse.

ADJ – 00040405 – named respondent – Dept of Public Expenditure and Reform.

ADJ – 00042579 – named respondent – Dept of Education.

The complaints received were as follows:

1.       Complaint submitted under s.13 of the Industrial Relations Act, 1969

2.       Complaint submitted under s.6 of the Payment of Wages Act, 1991

3.       Complaint received under the Protection of Employees (Fixed-Term Work) Act 2003.

The complaint under s.13 of the Industrial Relations Act, 1969 was withdrawn at a later date.

Payment of Wages Act, 1991.

·       The Payment of Wages Act 1991 at Section 5 - (1) provides that an employer shall not make a deduction from the wages of an employee unless - (see Appendix J)

·       This is followed by a number of provisions which we contend do not fall into any category that would justify the deduction from Conor's wages.

·       Conor Ryan was employed with the commission of lnquiry into child Abuse (CICA)as a clerical officer with effect from the 8th of June,2005.

·       Conor progressed incrementally on the civil service Clerical Officer payscale for the duration of his employment and was acting into an Executive Officer Grade post with effect from the 3rd of June 2019 until he was dismissed from employment on the 13th of July 2022.

·       On the 14th  of May, 2019 the then Secretary of the CICA, notes on file that Conor Ryan was to be in receipt of €37,487 which was point 6 on the Executive Officer scale with effect from 3rd  of June 2019 and that this new scale will be an incremental scale based on the EO pay scale and should be reviewed and point 7 of the scale applied in 12 months’ time subject to the Commission remaining open subject to the normal requirements for the awarding of increments.

·       lt is important to note at this juncture that there is no specific pay scale for the CICA and that the NSSO who have paid Conor his salary with effect from 2014 simply work from the civil service pay scales and do not calculate pay and overtime rates for example from a separate CICA pay scale.

·       lt is also important to note that the expression 'subject to the normal requirements for awarding increments' refers to the standard practice across the civil service.

·       We are claiming that in line with the 2007 Circular Conor should have progressed incrementally on the EO payscale 3rd of June 2021, and 3rd of June 2O22 but he did not progress as no instruction was issued to salaries with regard to his progression.

·       We originally calculated his total loss of gross pay at €7,694, based on the following breakdown:

·       However, in correspondence of the 2nd of March 2022 Payroll services in the National Shared Services Office note that Conor's pay on the EO Scale on the 3rd  of June, 2020 should have been at €39076 so we may have mis calculated as our starting point was €38,143 on the 3rd  of June, 2020 so we will be guided by the National Shared Services Office in this regard.

·       lt was all very difficult to establish as the National Shared Services Office could only advise Conor based on the instruction coming from his employer and they had not instructed the payment of his increment for 2021 or 2022. 

·       Notably the payment of an increment for any officer in 2021 is for the tasks and duties associated with it the previous year so payment in 2021, is for work completed from the 3rd of June, 2O2O – 3rd June 2021 and payment for 2022 is for work completed from the 3rd of June 2O2L- 3rd of June 2022.

·       Forsa contends that Conor's employer has made deductions from Conor's wages under the payment of Wages Act, 1991.

·       The deduction or payment was not required or authorised to be made by or under statute

·       The deduction or payment was not required or authorised to be made under the term of the contract of employment and there was no advance written agreement from Conor.

Protection of Employees (Fixed-Term Work) Act 2003.

·       Conor Ryan was employed with the Commission of lnquiry into Child Abuse (CICA) as a Clerical Officer with effect from the 8th of June 2005. Conor was on rolling contracts over a 17 year period and had a total of 48 contracts. During the course of his employment Conor was issued with an implied Contract of lndefinite Duration and is a fixed term worker for the purposes of the Protection of Employee's (Fixed Term Work) Act, 2003.

·       Conor was on rolling contracts with his employer and dismissed from employment by reason of redundancy on the 13th of July 2022 after 17 years.

·       The CICA advised Conor that the position he was appointed to ceased to exist in the Commission.

·       We contend that Conor's employer is the Department of Education and by extension the Department of Public Expenditure and Reform and his employer is in breach of the Protection of Employee's (Fixed Term Work) Act, 2003 (hereinafter referred to as the 'Fixed Term Workers Act' and Conor is in a position to identify a comparable permanent employee under Section 5 of the Fixed Term Workers Act and claims that he is being treated less favourably under Section 7 of the Act with no objective justification in respect of his conditions of employment under Section 6 other than on the basis of his status of employment.

The Employer

·       As referenced previously, the CICA falls under the aegis of the Department of Education and it is our clear understanding from our discussions with HR in the Department of Education, that all control, supervision and responsibility for the governance of the CICA lies with the Department of Education and by extension the Department of Public Expenditure and Reform and that any and all decisions made about renumeration and allowances for example are sanctioned by the Department of Education and by extension the Department of Public Expenditure and Reform and given our discussions on this matter to date with the Department, we do not believe this will be disputed.

·       We propose that the test to establish who Conor's employer is/was hinges on who has the power to hire, who pay's the wages/salary, who has the power to dismiss and who has the power of control.

·       Forsa contends that we have demonstrated that the Minister for Finance (i.e., the now Minister for the Department of Public Expenditure & Reform) has the power to hire and that pursuant to the Act of 2000 and the Amendment Act of 2005, the CICA could not hire without the consent of the Minister for Finance.

·       We have established that Conor was paid as a Clerical Officer in the CICA, on the civil service Clerical Officer pay scale and paid by the National Shared Services Office, a statutory civil service department.

·       lt is also clear that the Minister for Finance i.e., the now Minister for the Department of Public Expenditure and Reform has the power to dismiss and is the appropriate authority in this regard albeit not evidentially tested.

·       lt is also clear, in our view that as it is accepted that the CICA is under the aegis of the Department of Education, and they are responsible for the governance of the CICA then they have the power of control.

·       What is also clear, is that the terms and conditions that Conor worked under were all that of the Civil Service as the policies that applied to Deirdre applied to Conor. The FEMPI Act 2009 and all decisions that impacted on the terms and conditions of all civil and public servants also impacted on Conor in the same way as it did with every other civil servant and in the same way as it did with his colleague Deirdre Kellett.

The comparator

Section 5 of the Fixed Term Work Act provides the following

5.-(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if-

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

(b) in case paragraph (a)does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed term employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

(2) The following are the conditions mentioned in subsection (1)-

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters Pt.2 S.5 as skill, physical or mental requirements, responsibility and working conditions.

·       We propose that Conor's named comparator is his colleague, Deirdre Kellett. Deirdre is a permanent civil servant, is not on secondment and was assigned to work in the CICA directly from a PAS Competition. 

·       Both Conor and Deirdre have the same working conditions and same terms and conditions of employment as set down by the Department of Education and by extension the Department of Public Expenditure and Reform. We would contend that their roles are interchangeable. Deidre is a substantive Executive Officer grade and has been working into an acting Higher Executive Officer Post for the last number of years. Conor is a substantive Clerical Officer grade and has been working into the Executive Officer grade for the last 3 years (approximately) demonstrating that their roles are interchangeable.

·       Failing the acceptance of this point, we would contend that Conor is comparable to all other permanent Clerical Officers in the civil and public service.

Objective Grounds for less favourable treatment

6.-(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) lf treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1),be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

(5) Subsection (1)shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee. (8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part lll of the Organisation of Working Time Act 1997.

7.-(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)l be regarded as justified

·       We contend that Conor has been treated less favourably by his employer when they:

·       Dismissed him from employment by reason of redundancy

·       Did not seek to redeploy him back into the Civil and Public Service

·       Did not apply the Collective Agreement for Public Servants (Appendix C in previous claim) should redundancy stand

·       Did not provide him with access to a pension scheme and if they considered him an 'excluded employee' then they had an obligation to provide him with access to at least one standard PRSA which they did not do.

We contend that there are no objective grounds for the less favourable treatment other than Conor's status as a fixed term employee.

INTRODUCTION

1. The Complainant seeks adjudication from the WRC under section 6 of the Payment of Wages Act 1991 (the “1991 Act”) and section 14 of the Protection of Employees (Fixed – Term Work) Act 2003 (the “2003 Act”).

2. By way of background, the Complainant is employed by the Commission to Inquire into Child Abuse (the “CICA”). The contract of employment is between the Complainant and the CICA. Neither the Second nor Third Named Respondent holds a contract of employment with the Complainant.

3. It should be noted in passing that the complaint form names the Third Respondent as a party to these proceedings. Since the complaint form issued, the Third Respondent is now called the Department of Public Expenditure, NDP (National Development Plan), Delivery and Reform.

BACKGROUND FACTS

4.       CICA was established pursuant to Commission to Inquire into Child Abuse Act, 2000 (the “2000 Act”). Section 3(2) of the 2000 Act provides that “the Commission shall be a body corporate with perpetual succession, and it shall have power to sue and may be sued in its corporate name”.

5.       The Complainant, who is a fixed term worker, was appointed directly by CICA. He was engaged by an employment agency. CICA did not seek the approval of the Second and/or Third Named Respondent in respect of his initial employment. The Third Named Respondent sanctioned the annual expenditure in respect of CICA which could be used on, inter alia, the employment of fixed term staff.

6.        CICA entered into a contract of employment with the Complainant. The Second and/or Third Named Respondent did not sign a contract of employment or other contract with the Complainant at any stage during the Complainant’s employment with CICA. The Complainant at all material times worked under the control and direction of CICA.

7.        Currently, salaries of CICA employees are paid through the National Shared Services Office (the “NSSO”) Education Pay account. The rate of pay must be in accordance with Government policy in respect of rates of pay and rules set by the Third Named Respondent for Civil and Public Servants. However, CICA themselves liaise with the NSSO directly in respect of changes to salary (such as pay increments due). CICA determine when increments fall due and the amount of such increments without consulting with the Second and/or Third Named Respondent. Further, CICA submit these increments to the NSSO without first seeking approval from the Second and/or Third Named Respondent. For the avoidance of doubt, the Second and Third Named Respondent had no control, involvement or knowledge of the increments due to the Complainant and played no role and/or had no knowledge of the alleged withholding of increments. Furthermore, the Second and Third Named Respondents are strangers to the “acting – up” arrangement which resulted in an alleged increase of salary, the subject of the Complainant’s claim in respect of payment of wages.

8.        CICA made the decision to make the Complainant redundant. The Second and/or Third Named Respondent were not part of the consultation process entered into between CICA and the Complainant nor did they play any active role in the decision-making process. CICA subsequently notified the Residential Institutions Redress Unit (“RIRU”), which is a section within the Second Named Respondent, in respect of the redundancy calculations, and the RIRU confirmed that the calculations submitted were in line with the statutory redundancy regulations.

9.        The Second and Third Named Respondent are strangers to the alleged failure to notify the Complainant “that he has a right to contribute to a Standard PRSA”. For the avoidance of doubt, the Second and Third Named Respondent were not consulted in respect of the pension arrangements in relation to CICA’s fixed term employees.

Preliminary Objection.

·       Section 42 of the Workplace Relations Act 2015 allows an Adjudication Officer to, at any time, dismiss a complaint referred to him or her if he or she is of the opinion that it is frivolous and / or vexatious.

·       The Respondent submits that the Complainant’s complaint, seeking adjudication by the Workplace Relations Commission, is frivolous and / or vexatious for the following reasons:

(i)                  The Complainant is employed by CICA; and/or

(ii)                The Complainant’s complaint under section 6 of the 1991 Act is statute barred in whole or in part.

(i)                  The named Respondent is not the Complainant’s employer.

Definition of employer for the purposes of the 2003 Act 12. Pursuant to section 14 of the 2003 Act, a complaint can be referred to the WRC if the “employer” has contravened any section of the 2003 Act and Adjudicator may require the “employer” to take various steps which are set out in section 14. Therefore, if an employer contravenes a provision of the 2003 Act, liability rests with the employer and the WRC may make an order, in the terms set out in section 14, against the employer. This is consistent with various other sections of the Act which places an onus on an employer to take certain steps or sets out the circumstances in which an employer must follow a course of action as can be seen from the following sections:

· Section 7 of the 2003 Act allows for unfavourable treatment if “it is for the purposes of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose”.

· Section 8 requires an “employer” to inform the fixed – term employee of the objective condition determining the contract.

·       An “employer” for the purposes of the 2003 Act is defined as “the person with whom the employee has entered into or for whom the employee works under (or, where the employment has cease, entered into or worked under) a contract of employment”.

·       Associated employer is defined by section 2(2) as: 4 4 “(2) Employers are deemed to be associated if— (a) one is a body corporate of which the other (whether directly or indirectly) has control, or (b) both are bodies corporate of which a third person (whether directly or indirectly) has control”.

·       Section 2 also sets out the definition of “contract of employment” which: “means— a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract)”.

·       Section 2 also defines employee in the following terms: ““employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956 ) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or vocational education committee shall be deemed to be an employee employed by the authority, health board or vocational education committee, as the case may be”.

·       Therefore, an employer, under the 2003 Act, amounts to the person with whom the employee enters the contract of employment with and is the person who is prohibited from contravening a section of the 2003 Act. For the avoidance of doubt, the term employer is not determined by reference to who pays the salary of the employee. Definition of employer for the purposes of the 1991 Act 18. Section 1(1) of the 1991 Act defines the term “contract of employment” as follows:- “

(a)    a contract of service or of apprenticeship, and

(b)    any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing;” 19.

The term “employee” is defined as

“[A] person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, inrelation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the [Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], a harbour authority, [the Health Service Executive] or [a member of staff of an education and training board] shall be deemed to be an employee employed by the authority, [Executive] or [board], as the case may be;”

Finally, the term “employer” is defined as:- “[T]he person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;”

Relevant authorities

·       Sullivan v. The Department of Education [1998] E.L.R. 217 is a decision of the Employment Appeals Tribunal, on appeal from a decision of a rights commissioner, concerning a complaint made under the 1991 Act. The claimant teacher argued that she had been wrongly denied access to a particular qualification allowance and that this amounted to an unlawful deduction of wages within the meaning of the 1991 Act. The Minister contended among other things that he was not the employer of the claimant, but was merely a “paying agent”. The Tribunal rejected the Minister's argument in Sullivan that he was not the employer of the complainant for the purposes of the 1991 Act. The Tribunal set out its conclusions in this regard in the following terms:-

“The Tribunal does not accept that the Department is not the employer. The board of management or other managing authority of a school may well have a role in the day to day running of the school and indeed in engaging teachers, interviewing etc. The reality is that such boards of management or other managing authority in relation to state schools have little or no role when it comes to the question of remuneration of teachers which is a most important element and aspect of the relationship between teachers and their employers. The Tribunal considers that the role of the Department of Education goes beyond that of ‘paying agent’. The Department is empowered to negotiate teachers' salaries and qualification allowances and makes policy decisions in relation to the type of degree which Ms Sullivan and other teachers have studied for in relation to the status of such degree as regards qualification allowances. The Department has a role in the whole area of maintaining appropriate pupil/teacher ratio indirectly and regulates the number of teachers in any particular school as in the scheme of redeployment. If ultimately redeployment in the case of any particular teacher cannot be settled by agreement, the Minister is empowered to withhold the grant of the sum of money which would go towards paying that particular teacher's salary and effectively has the power to deprive a particular teacher of his or her salary.” 22. Later, in its decision in Sullivan, the Tribunal stated:- “Furthermore because of the minimal role which the board of management or other managerial authority exercises inrelation to the whole question of teachers' remuneration especially in the case of a full-time teacher it follows that where a teacher has a complaint/query in relation to his or her salary or takes issue with it the teacher in question is likely to end up dealing with the Department and not the school. When it comes to the question of remuneration, for the Department to say that it is not the employer would effectively mean that as far as the question of remuneration would go the teacher would have no employer which is inconceivable. If a deduction is made from a teacher's salary the school is likely to say that it, having no role in the question of payment of remuneration, cannot be considered to have made such deduction and the Department may say that it is not the employer for the purposes of any aspect of the teacher's employment. It is inconceivable that all of the teachers in the country should not have the benefit of the Payment of Wages Act 1991. It is difficult to see how the board of management could, short of ordering the Department to make a deduction, actually make a deduction from any particular teacher's remuneration.”

·       It is clear that that the Tribunal, in Sullivan, placed a considerable amount of emphasis on the fact that the Department had the power to negotiate teachers’ salaries and set the terms and conditions in respect of qualification allowances. It appears that this level of control was fundamental to the Tribunal’s finding that the Department amounted to the employer. Implicit in this decision is that a body that is simply the “paying agent” does not amount to the employer.

·       In these proceedings, the Second and/or Third Named Respondent had no control in respect of the payment of increments to CICA employees. The increments due to CICA employees were determined by CICA without any involvement or approval required by the Second and Third Named Respondent. CICA furnished their employees’ information, in respect of increments, to the NSSO directly, who paid these increments. Accordingly, the Second Named Respondent is merely the “paying agent” of the Complainant.

·       The Supreme Court in The Minister for Education and Skills & anor -v- Boyle & anor [2018]IESC 52, addressed the issue of whether the Minister could be regarded as an employer of a teacher, for pay related matters, for the purposes of the Protection of Employees (Part – Time Work) Act 2001. In this case, the Plaintiff, who was a part time teacher, argued that she was treated less favourably than her full - time comparator as her school did not provide for a pension for the Plaintiff. In order to succeed, it was necessary to prove, inter alia, that the Plaintiff had the same employer as her comparator. The full – time comparator was paid directly by the Minister who fixed the terms and conditions in respect of such salary. Whereas, 98% of the Plaintiff’s salary was paid by the Board of Management of her school out of a grant paid to that school by the Minister.

·       Clarke J focused on the particular statutory wording of the 2001 Act for the purposes of considering whether the Plaintiff was employed by the Minister. The 2001 Act defined an “employer” as “the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment…” and defined “contract of employment” as, inter alia, a “contract of service”.

·       Clarke J considered the meaning of the term “contract of service”, in the context of the 2001 Act, and found that the Minister had not entered a contract of service with the Plaintiff for the following reasons:

“9.12 A contract of service is a term which has formed part of the law of contract for a very considerable period of time. It ordinarily refers to an employer as the person who can direct the way in which an individual providing services is to do their job. Its most important function, as a formal legal term, is to distinguish such arrangements from a so-called “contract for services” where an independent contractor agrees to provide services but not with the degree of control over the way in which they are to work which applies in the case of a contract of service.

9.13 The ordinary meaning of the term “contract of service” implies an arrangement whereby one party agrees to work for the other and, subject to the terms of the contract, under the control of that person as to how they carry out their work. In its ordinary and natural meaning, and applying that definition to the facts of this case, it seems to me that Hillside Park was the other party to the contract for service with Ms. Boyle. It might theoretically be possible that a person might work under a contract for service where there were two parties on the other side as it were, although the absence of any examples is telling. Certainly the axiom that a man cannot serve two masters reflects much of the law as well as common sense. As with any contract, a contract for service ultimately depends on its terms both for its construction and for how it should properly be characterised. The real question is as to whether it is possible to say that the tripartite or triangular arrangement which applied in this case can properly, as a matter of law, be construed as involving the  Minister as at least an employer of Ms.  Boyle, for there is no basis on which it could be said that Hillside Park was not itself an employer. It should also be emphasised that any contract of service involves a reciprocal arrangement between employer and employee whereby the employee agrees to do work under the legitimate direction of the employer. It is accepted that, in the circumstances of this case, the  Minister had no entitlement to direct the type of work which Ms.  Boyle was to do.

9.14 The Court of Appeal placed significant reliance on the fact that Hillside Park had no control over the financial terms and conditions applicable to Ms. Boyle's contract. For the reasons already analysed, I am not sure that that is quite as fully the case as the Court of Appeal appeared to consider. If, for example, to take the hypothetical case mentioned by Hogan J., the Minister sought to impose terms of employment concerning pay and financial conditions which were unlawful, then Hillside Park would not, in my view, have been obliged to impose those terms on Ms.  Boyle. Rather it could have made clear to the Department that it was not willing so to do and that it would provide Ms.  Boyle with lawful terms and conditions. If, in such a scenario, the Minister was not prepared to provide funding to permit Hillside Park to make whatever payments would have been required to comply with law then, of course, it might have been necessary for Hillside Park to bring Ms.  Boyle's contract to an end. But in truth such a situation is no different than applies in the case of any grant aided employment as, indeed, demonstrated by what actually happened in this case. As soon as grant aid provided under the former policy of segregated pre-school traveller education was withdrawn, the school closed and Ms.  Boyle was made redundant.

9.15 All in all, I have come to the view that it is not possible to characterise the relationship between the Minister and Ms.  Boyle in all the circumstances of this case as involving a contract of service to which the Minister was a party. To do so would involve an extension of the law of contract beyond any known boundaries. I accept that for various legal purposes, including statutory regimes, there may well be circumstances where a Minister may incur a liability in respect of persons whom a Minister chooses to pay directly or where the Minister is the effective paymaster even though the payment may be made by an intermediary. But each such case must be considered in the light of established legal principles applicable to the area in question. It is for that reason that the result may differ depending on the precise legal or statutory scheme under consideration.

9.16 But in the context of this legislation and its reliance on the term “contract of service” (with only one, non-applicable, exception being in relation to agency workers), I think it would be stretching things much too far to suggest that there is a contract of service involving the Minister”.

·       The definition of the term “employer” and “contract of employment” for the purposes of the 2003 Act is similar to the definition contained in the 2001 Act. A contract of employment, under the 2003 Act, amounts to, inter alia, “a contract of service”. Applying Boyle, in order to amount to a contract of service, it appears that the employee must work under the control of the employer and that the employer can direct the type of work that the employee is required to do. In circumstances where it was CICA, and not the Second and/ or Third Named Respondent, who had control over the particular type of work that would be carried out by the Complainant and directed the type of work that the Complainant did and continues to do, CICA amount to the body who is in a contract of service with the Complainant.

The Complainant’s complaint under section 6 of the 1991 Act is statute barred

·       The Complainant’s complaint must be made within six months of the alleged breach of the Act. This period of time can be extended by a further 6 months if the failure to present the complaint or refer the dispute within the initial 6 - month period was due to reasonable cause.

·        The Complainant’s complaint form states that the Complainant’s “employer has failed to pay him his annual increment for June 2021”. It appears that this increment fell due on 3 June 2021 as the complaint form refers to the fact that previous increments fell due on the 3 June 2019 and 3 June 2020. The Complainant submitted his complaint form to the WRC on 5 May 2022 which is 11 months after the alleged breach occurred. Therefore, the Complainant is statue barred in respect of this complaint and has not provided any grounds to explain and/or justify that the delay in bringing his complaint was due to reasonable cause.

·       An email from Ms. Cliodhna McNamara, Forsa, to the WRC, dated 14 November 2022, appears to claim for a further loss of pay arising on 3 June 2021, 3 June 2022, 13 July 2022. It is unclear what date this alleged loss fell due. The Complainant is put on full proof that the alleged loss fell due within the 6-month statutory period. The Second and Third Respondent submit that any claim made, in respect of an alleged loss, that fell due 6 months prior to the 5 May 2022, is statute barred.

STRICTLY WITHOUT PREJUDICE TO THE FOREGOING 

·       The Second and Third Named Respondents are strangers to the matters pleaded in the complaint form in respect of redeployment, pension entitlements and failure to pay wages which has been set out above.

·        In circumstances where the Complainant’s complaint form states that his contract is a contract of indefinite duration, the Complainant is put on strict proof that 2003 Act applies to him.

·       The Complainant is put on strict proof that his complaint, in respect of pension entitlements, was referred to the WRC within 6 months from the date of the alleged contravention of the 2003 Act. The Complainant must identify the date on which he was refused access to the Standard PRSA scheme. The Second and Third Named Respondents reserve their right to argue that this part of the Complainant’s claim is statute barred.

·       Finally, in respect of the Complainant’s claim under the 1991 Act, the Second and Third Named Respondent submit that the complainant has claimed a sum of €4,878 in respect of an increment which allegedly fell due on the 3 June 2022. While the Second and/Third Named Respondent are strangers to the increments due to the Complainant, if the Complainant is entitled to an increment commencing on 3 June 2022, which the Complainant is put on strict proof in respect of, the Complainant is not entitled to the sum of €4,878, which represents the total loss incurred by the Complainant for the period between 3 June 2022 and 3 June 2023 because the Complainant was dismissed in July 2022. In respect of this period, the Complainant is only entitled to the loss for the period between 3 June 2022 and 13 July 2022 subject to the Complainant being able to prove his claim in this regard.

The first question that has to be addressed is the identity of the employer – who was Mr Ryan employed by?

At all material times the complainant was a member of staff at the Commission to Inquire into Child Abuse (CICA). He was engaged and interviewed directly by CICA and was appointed and recruited by the then Secretary of CICA with approval of the Chairperson. At no time were either of the Department of Education or the Department of Expenditure and Reform involved in the selection and recruitment process and no approval for his appointment was obtained or required. The Complainant was not appointed through the public appointment process and at no time was he appointed as a clerical officer or executive officer. The complainant’s representative has highlighted the number of fixed-term contracts (48) issued to the complainant. Each of these contracts quite clearly state that the appointment is employment as “Clerical Support”.

It is very clear to me that the Complainant was an employee of the Commission to Inquire into Child Abuse (CICA). The named Respondent in this complaint is Department of Public Expenditure and Reform - this Department were never the employer of the Complainant.

This complaint as submitted is not well found. There is no case to be answered by this Respondent.

This complaint as submitted is not well found. There is no case to be answered by this Respondent.