Complainant

Respondent

Parties

Anatasia  Putzier

Premier  Recruitment International U.C. t/a Morgan McKinley

Representatives

  Self-Represented

Mark Comerford IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061274-001

30/09/2023

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

CA-00061274-002

30/09/2023

The Complainant is a Senior Road Engineer and submitted a complaint form to the Workplace Relations Commission (WRC) dated and signed 27 September 2023 and recorded as received by the WRC on 30 September 2023. The Complainant had ticked the following boxes: (1) “I received a statement of my core terms which deliberately contain false or misleading information” and (2) “I am an agency worker and did not receive the same basic working and employment conditions which a comparable worker would be entitled [Protection of Employees (Temporary Agency Work) Act 2012].” The Worker accepted that he she had originally joined the client company (the Client) in the original action but had come to a compromise agreement with them.

The Respondent refutes the complaints in their entirety and further submits the Complainant was never employed by the Respondent but had been a self-employed contractor for a brief period between 8 July 2022 and 26 August 2022. Notwithstanding this position, the Respondent raised a preliminary issue that the complainants were out of time.

 The Respondent submits that the complaint was submitted to the WRC on 30 September 2023 but that it was statute barred under section 41 of the Workplace Relations Act 2015, even  in circumstances where reasonable cause provided for an extension of time, the Respondent submits that the Complainant was not engaged in work with them in the 12 months prior to submitting her complaint to the WRC. Mr Ronan McInerny gave evidence, supported by exhibited documentation, that the Complainant was engaged as a contractor to work with the Client of the Respondent between 08 July 2022 and 26 August 2022. Further evidence was given by the witness, as it was shared with the Respondent by the Complainant, that the Complainant then entered into a fixed term contract directly with the Client. The Respondent asserts that contract was prepared and issued by the Client, with the Respondent not being involved or having influence over its terms.

The Complainant gave sworn evidence that she believed she had submitted the requisite form in mid-August 2022 to the WRC and that she would be in time with the Complaint. The Complainant accepted that she received no pay from the Respondent from 26 August 2022. The Complainant though accepting that she entered a fixed term contract with the Client, submits that this was facilitated by the Respondent and that they should be liable under law for any subsequent transgressions under the Terms of Employment (Information) Act 1994 and the Protection of Employees (Temporary Agency Work) Act 2012.  

The Workplace Relations Act, 2015 (“the 2015 Act”), Section 41 provides at subsection:

 (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates…

 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Respondent gave convincing evidence, with supporting documentation, that the Complainant’s last day of engagement with them during the summer period of 2022 was 26 August 2022. The Complainant could submit no evidence that she was subsequently engaged on a contract for, or of, service with the Respondent but instead the evidence showed that it was the Client who subsequently engaged the Complainant. Notwithstanding the question as to whether the Complainant was an employee for the purposes of the complaints, I am satisfied, on the balance of probabilities, that the operable date from which the initial six-month period ran for submission of complaints was 26 August 2022. The 12-month potential reasonable cause examination under section 41(8) of the 2015 Act ended on 26 August 2023, therefore, I do not have authority to extend the initial 6-month period.

The Complainant said she believed that she had submitted the complaint in mid-August 2023. I examined the original complaint form from the Complainant. It was dated and signed 27 September 2023, Furthermore, I examined correspondence from the WRC to the Complainant dated 31 January 2024, where the receipt date of 30 September 2023 was referred to by the WRC. I noted there was no amending reply from the Complainant.

For the reasons outlined above, I find that the Complainant submitted her complaints outside of the prescribed 12-month period where I could potentially examine whether reasonable cause existed for late submission, therefore I find that I do not have jurisdiction to hear the complaints.   

CA-00061274-001 Complaint under section 7 of the Terms of Employment (Information) Act 1994: For the reasons outlined above, I find that the complaint was out-of-time.

CA-00061274-002: Complaint under section 25 of the Protection of Employees (Temporary Agency Work) Act 2012: For the reasons outlined above, I find that the complaint was out-of-time.

Out-of-Time.