ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR – SC - 00002251
Parties:
| Worker | Employer |
Anonymised Parties | An Engineer | Recruitment Company |
Representatives | Self - Represented | Mark Comerford IBEC |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 | IR – SC - 00002251 | 19/02/2024 |
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Date of Hearing: 04/02/2025
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. The hearing was held in conjunction with complaints of rights under various pieces of employment legislation.
Background:
The Claimant submits she was employed by the Respondent for a period between 8 July 2022 and 26 August 2022. She submitted the claim to the Workplace Relations Commission on 1 February 2024. The Claimant asserts she resigned from the employment since she was given work for two days only, despite being offered a full five-day contact. The Claimant contends that this amounted to constructive dismissal. The Respondent claims that the Claimant was never in an employment relationship with them but instead was on a contract for service (contractor). |
Summary of Claimant’s Case:
The Claimant submits she was promised a full week contract as a road engineer by the Respondent but discovered that the work did not materialise, as promised, but instead she was reduced to a two-day week. This created great financial stress both for herself and her family and she was forced to claim social welfare to make up some of the shortfall. The Claimant exhibited a purported payslip from the company on her mobile phone as well as her letter of resignation at the time. |
Summary of Employer’s Case:
The Respondent denies that the Claimant was ever an employee on their books but was instead a self-employed contractor. The Respondent identified the wage slip exhibited by the Claimant as coming from an ‘umbrella’ company. The Respondent asserts that this is a business entity that acts for independent contractors. The Respondent submits that in this case, the umbrella company administered payroll and tax deductions for the Claimant, and the employment relationship, if any is between this umbrella company and the Claimant. The Respondent exhibited a copy of a contract for service with the Claimant for the relevant period at issue |
Conclusions:
In conducting my investigation, I have considered all relevant submissions presented to me by the parties. I can only investigate a dispute under the Industrial Relations Act 1946 which covers the definition of a “trade dispute” within the statutory meaning as set out under section 3, which states: “The expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased.” Furthermore, for a dispute to be a trade dispute it must involve a “worker” as defined by section 23 of the Industrial Relations Act 1990:
“(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means a member of the Garda Síochána referred to in subsection (1A) and any person aged 15 years or more who has entered into or works under or, where the employment has ceased, worked under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include— (a) a person who is employed by or under the State, (b) a teacher in a secondary school, (c) a teacher in a national school, (ca) a teacher employed by an education and training board…”
I am satisfied in this case that there was never an employment relationship between the Claimant and the Respondent , notwithstanding the fact that the claim had been submitted nearly 1.5 years from the termination of a an 8-week engagement period. The exhibited copy of the contract for service and the existence of an umbrella company point irrevocably to the fact that the Worker in this case was a sub-contractor and was never an employee of the Employer. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. I conclude that the Claimant in this case was not a worker for the relevant period, therefore there is no trade dispute for me to investigate. I therefore cannot recommend concession of the claim by the Claimant.
Dated: 27-02-25
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Status of Worker, Section 13 of the Industrial Relations Act 1969. |