Complainant

Respondent

Parties

Paula  Dowling

Health Service Executive  

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00059836-001

06/11/2023

The Complainant was engaged as an agency nurse with the Respondent from 1st March 2021 to 1st September 2022. For the duration of this engagement the Complainant was assigned to the Respondent on a full-time basis, earning an average weekly income of €700.

In early 2023 the Complainant referred a complaint to the Commission in respect to a breach of the impleaded Act. On that complaint form, the Complainant correctly stated that her employment was with two separate bodies, an employment agency and the Respondent as the hirer to which she was engaged. In late 2023, a hearing was convened in respect of the allegations raised by the Complainant. At this hearing only the employment agency was invited to and attended the same. In the course of this hearing, it was determined that the agency was the incorrect respondent to the allegation, and the matter was adjourned to allows for the attendance of the respondent named above. During this period of adjournment, the Complainant referred the complaint above and indicated that this was the complaint she wished to pursue.

While the date of receipt listed above would have the effect of rendering the complaint out of time, the reality of the situation was that the Complainant referred a complaint under the correct legislation, impleading the Respondent within the cognisable period for the purposes of the relevant Act. In this regard it is further noted that the Respondent made no application in respect of such mattes and accepted that the complaint was correctly before the Commission. It is further noted that the Respondent conceded the complaint and issued an apology to the Complainant. Having regard to this particular set of facts, I accepted jurisdiction to hear and consider the complaint.

On the complaint form, the Complainant alleged that the Respondent failed to consider her for a permanent role on the basis of her agency worker status. By response, the Respondent accepted that this was the case, accepted that same represented a breach of the Act and apologised to the Complainant. In such circumstances no sworn evidence was taken from any party during the hearing.

A hearing in relation to this matter was convened for, and finalized on, 11th June 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Aside for the issue discussed above, which was raised by the Adjudicator, no further issues as to jurisdiction were raised during the proceedings.

By submission, the Complainant stated that she was engaged as an agency worker with the Respondent organisation. In the course of this engagement, she became aware that a permanent role was advertised in the area in which she worked. Given that the Complainant believed that she would be an appropriate candidate for this position, she commenced the application process for the same in the normal course.

Shortly after issuing an email expressing an interest in the role, the Complainant received an email from the Assistant Director of Nursing advising that her application would not be considered. This correspondence expressly stated that the Complainant would not be considered on the basis that the Respondent was not facilitating such expressions of interest from agency staff. By response, the Complainant stated that as an agency worker, she had a right to be informed of all permanent positions and to be considered for the same without reference to her agency status. The Complainant received no substantive response to this correspondence at the relevant time.

By submission, the Respondent accepted the factual matrix presented by the Complainant. In this regard, they accepted that the Complainant should have had an opportunity to express an interest in the permanent role and should have progressed throughout the relevant process in respect of the same. In this regard, the Respondent conceded the allegation raised by the Complainant and apologised for the difficulties the same caused her.

In the present case the Complainant has alleged that the Respondent failed to facilitate an expression of interest in a permanent position within their organisation. She submitted that the express reason for the same was that she was engaged as an agency worker with the Respondent. By response, and to their credit, the Respondent accepted the version of events set out by the Complainant and accepted that the same constituted a breach of the Act.

In this regard, Section 6(1) of the Act provides that,

“…an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.”

Section 11 of the Act goes on to provide that,

“A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.”

In this regard, it is further noted that Article 6.1 of Directive 104 of 2008 EC, the European legislation underpinning the impleaded Act, provides that,

“Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment. Such information may be provided by a general announcement in a suitable place in the undertaking for which, and under whose supervision, temporary agency workers are engaged.”

Article 2 of the Directive states that,

“The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers…”

Regarding the instant matter, it is common case that the Complainant was hired as an agency worker with the Respondent. In the course of this engagement, she applied for a permanent role. Almost immediately thereafter, the Complainant was informed that her application was not going to be considered any further on the basis of her agency status. Such treatment clearly constitutes unfair treatment based purely on the Complainant’s agency status.

In this regard, it is noted that Section 11 of the Act provides that an agency worker must be informed of any vacant posts that arise within the hirer. Having regard to this wording, it is apparent that the Complainant was aware of the role and did express and interest in the same. Notwithstanding the foregoing, it is noted that the purpose of the same is to “enabling the agency worker to apply for the position”. It is further noted that Article 6.1 further clarifies that the purpose of such advertisement is to allow the same opportunity to find permanent employment. In the present case while the Complainant was informed of the role, she was not given an opportunity to formally apply for the same or engage in the relevant internal process. In such circumstances I find that the Respondent is in breach of the legislation, particularly in light of the Directive’s stated aim of ensuring the principle of equal treatment between agency and non-agency workers.

Having regard to the foregoing, I find that the complaint is well-founded and the Complainant’s application succeeds.

I find that the complaint is well-founded and the Complainant’s application succeeds.

Regarding redress, Schedule 2 of the Act permits me to direct a certain course of action or to award compensation to a maximum of two years’ compensation. Given that the parties no longer enjoy a working relationship, and the Respondent has accepted that they were in breach, I find that compensation is the most appropriate form of redress in the circumstances.

In evidence, the Complainant outlined that the Respondent failure to consider her for the permanent role had a detrimental effect on her well-being and directly contributed to her leaving the role. Notwithstanding the same, the wrong-doing conceded by the Respondent was that the Complainant was not considered for the role. In this regard, it cannot be determined at this remove whether or not the Complainant would have succeeded in the application had the same been processed. In this regard, while the Respondent’s failure clearly caused the Complainant a great deal of avoidable distress, compensation should not be awarded on this basis.

In consideration of the foregoing points, I award the Complainant the sum of €4,000 in compensation.

Agency Workers, Application, Expression of Interest