Complainant

Respondent

Parties

Rachel  Valentine

Department Of Public Finances And Expenditure

Representatives

  Anthony McIntyre – Independent Workers Union

Maria Browne - Chief State Solicitor Chief State Solicitor's Office

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-00057245-001

20/06/2023

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

CA-00057245-002

20/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057245-004

20/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00057245-007

20/06/2023

The named Respondent raised a preliminary issue. 

The Respondent submits that the Department of Public Expenditure, NDP Delivery and Reform (DPENDR) was not and is not the employer of the Complainant. The Complainant was, and is, neither a civil servant nor a public servant as defined in s.1 of FEMPI.  Rather, the Respondent submits, the Complainant’s employer, at all material times, was and is Don Bosco Care CLG (Don Bosco).  Don Bosco is a private sector charitable organisation that receives some grant funding from TUSLA.

Don Bosco has its own Board of Directors, external to and separate from the HSE, TUSLA and/or DPENDR.  It files its own financial statements. 

The identity of the employer did not change from Don Bosco to the HSE by reason of any legislation.  Part 10 of the Health Act 2004 dissolved several bodies and transferred their function to the HSE. Don Bosco was not listed as one of those organisations in s.56 therein.

The identity of the employer is not TUSLA.  Don Bosco is an organisation coming within Section 56 of the Child and Family Agency Act, 2013. As such, Don Bosco receives grants from TUSLA who enters service level agreements (SLAs) with Don Bosco.  Don Bosco provides children’s residential Services and after care services to TUSLA. S.56.14 of the Child and Family Agency Act, 2013 provides; “(14) For the avoidance of doubt, an arrangement under this section shall not give rise to an employment relationship between a service provider, its employees or agents on the one hand and the Agency on the other.”

Neither the DPENDR, the HSE, nor TUSLA, were responsible for discharging the Complainant’s wages.  This was the responsibility of Don Bosco. Following 2009, some payments made by TUSLA to 2.56 organisations such as Don Bosco, were reduced through FEMPI or otherwise. S.56 organisations, such as Don Bosco, may have then reduced the wages of staff as a result of those reductions. After this, agreements have been entered to restore funding by TUSLA to s.56 organisations, such as Don Bosco, with a stipulation that such increased funding would be used to benefit workers and in what manner.

If deductions were applied to the Complainant alleges, the Respondent submits that these deductions were implemented by her employer Don Bosco. Insofar as the Complainant argues that such deductions were applied unlawfully or were not properly restored, the claims should be against Don Bosco as the employer.

The Complainant stated that her payslips going back to 2008 shows she was paying pension before the introduction of FEMPI, which was consolidated under the HSE.  In 2010 her payslips show she was earning less salary and paying a pension related amount.  Her November 2023 pay slip shows she was paying additional superannuation contributions, AVCs, which were only open to Public Servants.

The Complainant also provided an email from January 2018 which mentions Don Bosco as a s.38 organisation.

The Complainant stated that Don Bosco’s funding comes directly from TUSLA, which comes to TUSLA from the DPENDR, without funding from the Department, Don Bosco would not exist. The Complainant put forward that TUSLA got legal advice in December 2022 that the Complainant (and her colleagues in Don Bosco) are entitled to pay parity and pay restoration, however, when TUSLA looked to the Department, the Department would not fund it.

I have considered this matter carefully.

I find the named Respondent is not nor was not the Complainant’s employer, rather that she was an employee of Don Bosco at all material times. 

The evidence adduced by the named Respondent on the preliminary issue is clear and irrefutable. 

While I find the Complainant has erred in the naming of her employer and therefore her complaints misconceived, I do not doubt her bona fides in pursuing her claims.

The complaint is not upheld.

The complaint is not upheld.

Wrong respondent