ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046600
Parties:
| Complainant | Respondent |
Parties | Brian Murphy | National Ambulance Service |
Representatives | Self | General Manager Employee Relations |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00057563-001 | 06/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00057563-003 | 06/07/2023 |
Date of Adjudication Hearing: 07/02/2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text and the Respondent’s employees are referred to by their job titles.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
I have taken the time to carefully review all the evidence both written and oral. Much of the evidence was in dispute between the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
The Complainant was self-represented.
The Respondent was represented by Emily Mahon, General Manager Employee Relations.
Background:
The Complainant was employed by an employment agency and placed with the National Ambulance Service in its control room. The Complainant is seeking payment of a Covid recognition payment which was paid by the Respondent to its own staff. |
Preliminary Issue: Correct Respondent
Summary of Complainant’s Case:
The Complainant submits that the Respondent paid its emergency control room staff a Covid recognition payment of €1,000 euros. However, the Respondent refused to pay the allowance to agency staff who worked alongside its staff. The Complainant submits that the employment agency which employed him at that time has now exhausted all avenues available to it to procure the payment for its staff. The Complainant submits that the Respondent’s refusal to extend the Covid recognition payment to agency staff is in breach of section 6(1) of the Protection of Employees (Temporary Agency Work) Act 2012. |
Summary of Respondent’s Case:
The Respondent submits that the employment agency is responsible for paying the Covid recognition payment to the Complainant and, therefore, that the complaint should have been brought against the employment agency. |
Findings and Conclusions:
Preliminary Issues The first matter for me to address is the two preliminary issues which have arisen in the course of my investigation – (i) the redress options selected by the Complainant and (ii) whether the Complainant has named the correct respondent. If following my consideration of either of the preliminary issues leads me to conclude that I have no jurisdiction to hear this complaint, I will not proceed to consider the substantive issue.
Preliminary Issue: Redress Option On the WRC complaint form under the heading “Selected Redress Option”, the Complainant selected adjudication under section 6 of the Payment of Wages Act 1991. However, in the narrative to his complaint, the Complainant submitted that the Respondent’s failure to pay him the Covid recognition payment was in breach of section 6(1) of the Protection of Employees (Temporary Agency Work) Act 2012. I am of the view, therefore, that I should investigate this complaint under both Acts, and this is reflected in my Decision. In considering the matter I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J held that while it was permissible to amend a claim set out in form EE.1 this was only permissible where “the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.” He went on to say, "the respondent...must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice." In the present case, the Complainant’s claim had been outlined in advance of the hearing in the complaint form. I am thus satisfied that the Respondent was on notice of the claim and that the addition of a redress option under the Protection of Employees (Temporary Agency Work) Act does not fundamentally alter the nature of the claim before the hearing.
Preliminary Issue: Has the Complainant named the correct respondent? CA-00057563-001 – Complaint under the Payment of Wages Act Section 1 of the Payment of Wages Act 1991 defines employer as follows: ““employer”, in relation to an employee, means 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;” In this case, the Complainant’s contract of employment was with the employment agency. Accordingly, I find that by naming the hirer as the respondent on his complaint form, the Complainant has not named the correct respondent. I find, therefore, that his complaint is not well founded.
CA-00057563-003 – Complaint under the Protection of Employees (Temporary Agency Work) Act I note that, in the narrative to his complaint, the Complainant submitted that the Respondent’s failure to pay him the Covid recognition payment was in breach of section 6(1) of the Protection of Employees (Temporary Agency Work) Act 2012 which provides: “(1) Subject to any collective agreement for the time being standing approved under section 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 are defined under section 2(1) of the Protection of Employees (Temporary Agency Work) Act 2012 as follows: “”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, …” I note that section 2(1) of the Protection of Employees (Temporary Agency Work) Act 2012 provides the following definition of 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;” There is no dispute that the Complainant was employed by the employment agency at the material time and that the Respondent was not his employer. In light of the above, I find that the Complaint has not named the correct respondent in his complaint form and, therefore, that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00057563-001 – Complaint under the Payment of Wages Act I declare that this complaint is not well founded.
CA-00057563-003 – Complaint under the Protection of Employees (Temporary Agency Work) Act I declare that this complaint is not well founded. |
Dated: 27/02/2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Agency worker – incorrect respondent |