Worker

Employer

Anonymised Parties

A Worker

A Social Care Service

Representatives

Joseph Bolger of ESA Consultants

Mr White and Ms Sexton,  Solicitors, of Comyn Kelleher Tobin Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027865

18/04/2019

Initially this Dispute concerned a formal Grievance raised by the Worker in respect to Bullying and Harassment by an Employer Manager and the alleged wilful ignoring of same by the Worker stated Employer – a major State Agency. An initial Hearing was held on the 10th October 2019. An opening issue, the identification of the correct and proper Employer in the dispute was immediately raised by the alleged Employer Representatives.  It was stated that the stated Employer State Agency, Agency A, was not the Employer rather that it was a separate Agency, Agency B

Matters progressed into 2020 by way of significant correspondence between the Worker’s Representative, the Agency A, Legal Representatives and the WRC.

It was intimated, verbally, to the Adjudication Officer in the Spring of 2020, that the background matters to the dispute were extremely complex and involved significant Inter Agency issues between Agency A and all Service Providers under Section 56 of the Child and Family Agency Act 2013 - The Children’s Act.

It was requested in 2020 that the case be allowed “Rest” to allow for extensive local and National discussions which hopefully would resolve the matters.

No further communications were received from either Party.

In a review of long outstanding cases, still on file and not formally withdrawn, the WRC contacted the Parties in November 2023 to offer a relisting of the case.  

The Worker Representative advised that the issues in the case, despite numerous efforts at solutions, were still unresolved and welcomed the new Hearing dates.

At the Hearing Date of the 17th January 2024 the Adjudication Officer invited supplemental legal Submissions from the Parties in relation to the correct Employer issue.

Specific Details

The Worker is employed as a Coordinator at State Agency B since 9th January 2010 and remained employed at the date of the Hearing on the 17th January 2024.

1:1        Opening Issue – Correct Employer

The Worker gave an Oral Testimony supported by a Written Submission. The chief spokesperson was Mr Bolger of ESA Consultants.

Mr Bolger, in detailed arguments supported by extensive Legal commentary, advanced the argument that Agency A was the actual employer. He advanced that Agency B was in effect an impotent intermediary behind which Agency A sought to evade their proper legal responsibilities as regards the initial Bullying and Harassment complaints of the Worker.

Numerous Legal tests, derived from the Contract OF \ FOR Service, cases law were cited. The recent Supreme Court case of Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’ Pizza was extensively referred to as was the WRC Adjudication ADJ-0036832- Amanda Craddock v Dept of Housing, Local Govt and Heritage.

In Oral testimony the allegedly overbearing and alleged completely “dictatorial” actions of named Agency A, Mangers, was referred to support the case that Agency B was a powerless entity at their complete micro managerial whim. The Managerial handling of the case of Timmons V Agency B CLG was cited as an example where Agency B was potentially legally exposed by incorrect Agency A directions to the Agency B Board was cited. The actions of a named Agency A senior Executive in allegedly recommending that Agency B seek Voluntary Liquidation were also cited.

The alleged Employer Agency A was represented initially by Mason Hayes and Curran, Solicitors and latterly (Hearing of the 17th January 2024) by Mr White of Comyn Kelleher Tobin Solicitors. A lengthy letter of the 9th September 2019 from Mr M Connellan Jnr, the Agency A, GM Solicitor, set out, in considerable detail, the Employer Arguments that Agency A was not the Employer.

Mr Connellan referred to the provisions of the Child and Family Agency Act 2013 - The Children’s Act.

Under Section 56 the Agency B has a Service Level Agreement with Agency A.  Under Section 56(4) the Act states that 

“an arrangement under this section shall not give rise to an employment relationship between a service provider, its employee or agents on the one hand and the Agency on the other”.

Section 5.5 of the Child and Family Agency Act 2013 (the “Act”) also specifies that the service Provider (Agency B) must use the Procedure in the Act to resolve any issues between the Service Provider and Agency A. This has not happened in this case.

 Section 20 of the Act also states that both Parties.

 “agree to avoid disputes and deal with issues as they arise. It is expected that any disputes in relation to this Agreement shall be resolved through direct discussion between Representatives from both Parties at review Meetings”

Mr Connellan stated that no such discussions had taken place and the matters were, accordingly, not at that stage in 2018/2019, a proper matter for the WRC. In a side reference it was noted that Agency B had made a complaint against Agency A on the 21/06/2018. This was Independently investigated by a respected HR Consultant, Ms Van Turnhout, whose findings did not find favour with the Worker.

In summary the Employer concluded that there was no employment relationship between the Parties and that the issues in contention had already investigated by the Van Turnhout Independent process.

3:1       General Observations

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

This was a Dispute seeking a Recommendation under the Industrial Relations Act,1969.

The arguments advanced were detailed and the oral testimony of the Worker was heartfelt.

Mr White, for the Employer, gave a comprehensive and insightful presentation.

In Oral discussion at the close of the Hearing on the 17th January 2024, Mr Bolger for the Worker, effectively, it appeared to the Adjudicator, sought a resolution that would address or at least alleviate the alleged strained relationships between Agency B and Agency A and address some direct issues for the Worker. In particular it was pointed out by Mr Bolger that the Worker is at a major salary deficit with other similar Agency A funded agencies in the general Midlands area. Agencies in adjoining Counties were cited as local examples.

In addition, the Worker has a fear, founded or unfounded, that the permanency / status of her Employment is seen as questionable by Agency A and is often used as a veiled “threat” against her especially by some Agency A Managers.

By way of observation by the Adjudication officer the issue of the status of the Employment Relationship between the Parties is a complex Argument open to multi-faceted interpretations. The recent Supreme Court finding Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’ Pizza [2023] IESC 24, certainly provides much that it is relevant to varying interpretations. As an aside it was noted by both Parties that this learned Judgement runs to in excess of 190 pages of close Legal Arguments.

The Legal Representative for Agency A was in a most difficult position – having to argue that there was no employment relationship but having simultaneously to maintain an open approach to the over all complexities of the entire situation. It was a tight rope that he managed to successfully walk. It was acknowledged that he would be reporting all proceedings and in particular Mr Bolger’s “overtures” to his clients. He would require further Client, Agency A, consultations. It was agreed between both Parties that the Dispute had gone on for too long and needed a settlement.

As this was an Industrial Relations Act, 1969 case the Adjudicator, having listed to many Oral Arguments and read copious submitted written materials makes the following Recommendations.

Bullying and Harassment, Status of Worker, End Employer question, Worker Salary.