AWD241

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046600 (CA-00057563-003)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Protection of Employees (Temporary Agency Work) Act, 2012.  The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

The following is the Court's Decision.

DECISION:

This is an appeal by Brian Murphy against a Decision of an Adjudication Officer (ADJ-00046600 CA-00057563-003) made under the Protection of Employees (Temporary Agency Work) Act 2012 (“the 2012 Act”). The Adjudication Officer found that the complaint was not well founded.

In this Decision the parties are referred to as they were at first instance. Hence, Brian Murphy is referred to “the Complainant” and the National Ambulance Serviceis referred to as “the Respondent”.

Preliminary Matter

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.

The Respondent raised a preliminary matter regarding whether the Complainant has named the correct respondent. The Respondent submits that the Complainant was employed by an employment agency and carried out duties for the Respondent during the Covid-19 pandemic. The employment agency is responsible for payment of any recognition payment that may apply to the Complainant and, therefore, any complaint should have been brought against the employment agency. At no stage was he directly employed, in receipt of a contract of employment or paid by the Respondent. Therefore, the within claim brought under the 2012 Act must fail.

The Complainant submits that the Social Welfare (Miscellaneous Provisions) Act 2003, Part 2 section 19 (a) states that whoever is making the payment is deemed to be the employer. As the Respondent was responsible for distributing the payment to the relevant agencies, it is the employer for the purposes of this payment.

The Relevant Law

Section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 provides in part as follows:

“agency worker” means an individual employed by an employment agency 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 employment agency;

“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;

Findings and Conclusions:

It is accepted that at all material times, the Complainant had a contract of employment and received his wages from an employment agency.

Section 2 of the 2012 defines that an “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.

In this case, the Complainant’s contract of employment was with the employment agency.  The Court finds that for the purposes of his complaint under the 2012 Act, the Complainant has not named the correct respondent on the complaint form. In circumstances where the Complainant has impleaded the incorrect Respondent, his complaint under the Act must fail.

Decision

The complaint is statute barred. The Court finds that the Complaint under the Act is not well founded.

The appeal is not allowed.

The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
25 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.