PWD2441

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046600 (CA-00057563-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991. 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-00057563-001) made under the Payment of Wages Act 1991 (“the 1991 Act”). The Adjudication Officer found that the complaint was not well founded.

In this Determination 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 1991 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 1 of the Payment of Wages Act 1991 provides in part as follows:

"employee" means 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, in relation 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, a health board or a member of staff of an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be;

"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.

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 1 of the Payment of Wages Act 1991 defines that an “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.  The Court finds that for the purposes of his complaint under the 1991 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.

Determination

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 determines.

	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.