ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047005

Parties:

Complaint:

Date of Adjudication Hearing:  24/01/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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.

Background:

The Complainant had a one year fixed term contract which was terminated before the end date of the contract.

Summary of Complainant’s Case:

The company represented by IBEC, are stating that there is a Preliminary Issue regarding that the employer is not covered by the Fixed-Term Work Act 2003 and quoting the Employment Agency Act 1971. The above Act was amended by the Protection of Employment (Temporary Agency Work) Act 2012.

Section 2. (1) In this Act “Act of 1971” means the Employment Agency Act 1971 “Act of 1977” means the Organisation of Working Time Act 1997 “Act of 2000 mean the National Minimum Wage Act 2000 “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;

It further states, “ contract of employments” means- (a) A contract of services, or (b) A contract under which an individual agrees with an employment agency to do work for another person (whether or not that person is party to the contract) It further states, “ 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 mention person;

“ hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of an agency worker carries out work pursuant to an agreement ( whether in writing or not) between the employment agency by whom the agency worker is employee and the first mention person or any other person; (4) For the purpose of this Act, a person who, under a contract of employment referred to in paragraph (b) of the definition of a “contract of employment” is liable to pay the wages of the individual in respect of work done by that individual shall be deemed to be the individual’s employer. Section 3.- This Act applies to agency workers temporary assigned by an employment agency to work for, and under the direction and supervision of, a hirer.

Workplace Relations act 2015

Presentation of complaints and referral disputes

Section 41. (3) (a) An agency worker (in this Act also refers to as the “complainant”) within in the meaning of the Act 2012 or any trade union of which the agency worker is a member, with the consent of the agency worker, may present a complaint to the Director General that the hire ( with in the meaning of the Act) of the agency worker has contravened section 11, 14. or 24 of that Act in relation to the agency worker, and where the complaint is presented the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer, .

Directive (EU) 2019/1152 of the European Parliament and of the council of 20 June 2019 on transparent and predictable working conditions in the European Union. European Union (Transparent and Predicable Working Conditions) Regulations 2022, resulted in Significant changes to Terms of Employment (information) Act 1994, changes to the Organisation of Working Time Act 1997 and changes to the Protection of the Employees (fixed-Term work) Act 2003. Section1. definition of employees now includes self-employed and agency workers, seafarers, and sea fishermen. Therefore, there is no preliminary issue.

IBEC assertion of what the case is about is challenged. IBEC have stated that, the complainant alleges that the respondent failed to provide to the employee’s representative information about the fixed-term work. Which is marked in the dropdown box; however, the claim specifically states the reason as to the complaint in the box provided, Complaint Specific Details. This has been deliberately ignored by IBEC to derail the case against the company, in which IBEC hinges it case on section 11. Furthermore, IBEC contents that the Complainant is not covered by the 2003 legislation which has already been covered. The Complainant commenced employment with the respondent on the 22nd of August 2022 with a signed fixed-term contract that would expire on the 22nd of August 2023, the company also inserted into the contract that the contract shall be subjected always to earlier termination as provided for in the contract. This phase of the contract is an abuse of the provisions of the Protection of Employees (FixedTerm Work) Act 2003. Section 8

(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

These are the 3 provinces on completing a contract under the Protection of Employees (Fixed-Term Work) Act 2003. They cannot be cobbled together, its one or the others. The Complainant was given a specific fixed-term contract from August 2022 to August 2023, a specific date. As an employee of Morgan McKinley, he should have been given work up to the specific date or paid in lieu of the specific date.

We ask the Adjudicator to award payment to the Complainant to the specific date that the contract was due to finish, August 22nd, 2023.

Summary of Respondent’s Case:

A preliminary issue arises in this complaint and the Respondent submits that the Complainant, as an agency worker, is not covered by the Protection of Employees (Fixed-Term Work) Act, 2003. Protection of Employees (Fixed-Term Work) Act, 2003 defines: -

“contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not includea contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract)”

For the avoidance of doubt, the Employment Agency Act, 1971 defines an employment agency as ‘’the business of seeking, whether for reward or otherwise, on behalf of others, persons who will give or accept employment, and includes the obtaining or supplying for reward of persons who will accept employment from or render services to others’’. The Respondent (Morgan McKinley) is a Trademark and Registered Business Name of Premier Recruitment International. The Complainant was placed with a client of the Respondent and his assignment ceased when the client communicated to the Respondent that they no longer had the requirement. This information was relayed to the Complainant, and he was paid the notice period, as provided for in his contract of employment and assignment notice. The Respondent submits that this claim has no locus standi.

The Respondent respectively requests that the Adjudicator deal with the preliminary matter first and foremost and reach a conclusion on same before deciding whether the substantive complaint under the Protection of Employees (Fixed-Term Work) Act, 2003 should be heard. There is jurisprudence which suggests that the Adjudicator is precluded by law from holding a substantive hearing until a decision on the preliminary matter is reached. In the case of Bus Eireann v SIPTU PTD048/2004, the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required referencing the judgement of O’Higans CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242. In the case of Employee v Employer UD969/2009, the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case. Given the significance of the preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same. The Respondent would respectfully request that the Adjudicator reach a determination, first and foremost, on the preliminary issue.

The Respondent also seeks that the name of the client not be published.

Timeline

On 22 August 2022, the Complainant commenced employment in the Respondent’s client. For the duration of the Complainant’s assignment, the Respondent processed his payroll. The Complainant submitted timesheets on a weekly basis which were approved by the client.

Prior to 2 June 2023, the Client contacted the Respondent and requested the Complainant’s assignment conclude on 2 June 2023. The reason furnished by the Client was that the project work was no longer there for the Complainant.

The Complainant was paid 4 weeks in lieu if notice as allowed for in his contract of employment and assignment schedule. The Complainant’s assignment was terminated on 2 June 2023, and he was paid in lieu of his notice.

On 12 July 2023, 6 weeks after the Complainant’s assignment had ceased, the Respondent received an email from the Complainant’s Representative alleging that ‘’ In using the Termination Clause 8. (which is every way but loose) you are avoiding your responsibility as the employer of Mr. Lane. The Protection of Employees (FixedTerm Work) Act, 2003, The 2003 Act applies to all fixed term employees’’.

Further emails were exchanged between the parties.

On 25 July 2023, the representative emailed the Respondent advising that ‘’I have tried to contact you on several occasions by phone and have left several messages for you , however you have not responded. On the referral form to the WRC , one paragraph asks if the management is aware that the complaint is being lodge against them, I am now notifying you that my intention is to lodge the complaint against the company tomorrow morning if the matter is not resolved’’ and further advised ’’In the event that I must lodge the complaint, it will cost the company a lot more money in trying to defend the complaint rather then trying to resolve the matter’’.

On 28 July 2023, the Complainant’s complaint was submitted to the WRC.

Without prejudice to the Respondent’s position that this claim has no locus standi for reasons furnished above, the Protection of Employees (Fixed-Term Work) Act, 2003, Section 11 provides: -

(1) Fixed-term employees shall be taken into account when calculating the threshold above which employees' representative’s bodies may be constituted in an undertaking in accordance with section 4 of the Transnational Information and Consultation of Employees Act 1996.

(2) As far as practicable, employers shall consider providing information to employees' representatives about fixed-term work in the undertaking. Section 4 of the Transnational Information and Consultation of Employees Act, 1996 provides: -

(1) In determining whether, for the purposes of the establishment of a Special Negotiating Body, an undertaking is a Community-scale undertaking or undertakings are a Communityscale group of undertakings, the number of employees employed in the undertaking or group of undertakings shall be taken to be the average number of employees, including part-time employees, employed in the undertaking or group of undertakings during the two years immediately preceding the request for the establishment of the Special Negotiating Body.

(2) The central management shall, on being so requested by an employees' representative, give to that representative such information about the numbers and status of employees employed in an undertaking or undertakings as is reasonably necessary to enable the numbers referred to in subsection (1) to be assessed.

(3) For the purposes of this section— “employees' representatives” includes those employees' representatives already recognised by the undertaking or group of undertakings for collective bargaining or information and consultation purposes; “part-time employees”, in relation to employment in the State, means employees—

(a) in the continuous service of an employer for not less than 13 weeks, and

(b) normally expected to work not less than eight hours each week for the employer.

The Respondent submits that, in addition to the Complainant not being covered by the legislation under which the complaint is being pursued, no undertaking occurred and therefore the complaint submitted is moot, regardless.

Findings and Conclusions:

The complaint form submitted by the Complainant states “my employer failed to provide to employees’ representative information about fixed-term work”.  Further, in the narrative it is stated that the Complainant was given a one-year contract from August 2022 to August 2023 and in June 2023 he was told there was no more work and he was given one month’s notice.

The complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 in normal circumstances would require clarification and some attempts were made at the hearing to ascertain what the complaint was under the Act.   The Respondent argued that the Complainant has no locus standi to pursue his complaint on the grounds that as an agency worker, he is not covered by the Protection of Employees (Fixed-Term Work) Act, 2003.

The Complainant’s representative called on a number of pieces of legislation to argue the Complainant’s entitlement to avail of the provisions of the Protection of Employees (Fixed-Term Work) Act, 2003.  It was argued that the Complainant’s locus standi to pursue his complaint under the Act is covered by the Protection of Employment (Temporary Agency Work) Act 2012, the EU Directive 2019/1152 on Transparent and Predictable Working Conditions and Statutory Instrument S.I. 686/2022.  Having examined the various Acts and Statutory Instruments, I find that none of the legislation relied upon changes the definition of contract of employment in the Protection of Employees (Fixed-Term Work) Act, 2003 which provides:

“contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract)”.

I conclude that the Complainant has no locus standi to pursue his complaint under the Protection of Employees (Fixed-Term Work) Act, 2003 and I find his complaint to be 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.

I have decided that the Complainant has no locus standi to pursue his complaint under the Protection of Employees (Fixed-Term Work) Act, 2003 and the complaint is not well founded.

Dated:   07-03-2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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