ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00045643

Parties:

Complaint(s):

Date of Adjudication Hearing:  08/02/2024

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

Preliminary Matter:

The Respondent relies on the following to argue that the Complainant is not an Agency employee:

The Respondent relies on Labour Court determination EDA1823 which sets out that “The Court is very familiar with the distinction between a provider of agency personnel and a provider of managed services. Neither the 1971 Act nor the 2012 Act applies to a business the operations of which come within the latter category”.

The Respondent would draw the AOs attention to Tesco Ireland Ltd v Marek Pawlisiak ADE/16/66 where the same set of facts apply and are relevant to the instant matter. In its findings the Court noted that it “is very familiar with the distinction between a provider of agency personnel and a provider of managed services. Neither the 1971 Act nor the 2012 Act applies to a business the operations of which come within the latter category. Both Acts apply exclusively to the former type of business. Noonan Services Group Limited is of the latter type. In the context of the factual background to this case, Noonan Services Group Limited was contracted at all material times to provide security services at the Respondent’s stores throughout the country. It did not supply the Respondent with personnel to work under the latter’s supervision and direction. It follows, therefore, that the Complainant’s claims against the Respondent under the 1998 Act are not well-founded as the Respondent was at no stage his employer for the purposes of that Act.

On the facts I am satisfied that I don’t have jurisdiction to hear these complaints as TESCO does not receive agency personnel from OCS Ltd.

The relevant definitions in the Protection of Employees (Temporary Agency Work) Act, 2012 as amended (the Act) are:

“employee” means a person who has entered into or works (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;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

It is argued that in contrast to the protections as provided for under the Act, OCS Ltd, does not employ individuals to work for and under the direction and supervision of a person other than OCS itself. OCS Ltd provides a managed service which means it is controlling the activities of its employees and enters a service contract with TESCO not an agency contract.

On the facts before me, and the evidence provided by OCS Limited I have determined that OCS Limited is the employer of the Complainant and that OCS Limited provides managed services toTESCO and is not providing Agency staff where such staff are directly controlled by TESCO. For these reasons I have determined that I don’t have jurisdiction to hear the complaints brought under the Act.

Section 42 of the Workplace Relations Act 2015 as amended states:

Dismissal of claim by adjudication officer

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

As I have formed the view that the complaints before me are misconceived, I dismiss the complaints.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

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

Dated:   01 March 2024

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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