AWD251

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045717 (CA-00056525-005)

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 10 December 2024. 

The following is the Court's Decision:-

DECISION:

This matter comes before the Court as an appeal by Lourda Finn (the Appellant) of a decision of an Adjudication Officer given under the Protection of Employees (Temporary Agency Work) Act, 2012 (the Act) in her complaint against the Health Service Executive (the Respondent).

The within complaint was made to the Workplace Relations Commission on 10th May 2023. The within complaint therefore, having regard to the provisions of the Workplace Relations Act, 2015 at Section 41, can extend only to the period of six months expiring on 10th May 2023. No application was made to the Workplace Relations Commission or this Court on appeal to extend the time period permissible for the making of the within complaint due to reasonable cause.

The six-month period expiring on 10th May 2023 is the six months from 11th November 2022 to 10th May 2023 inclusive. The Appellant ceased attending for work with the Respondent on 11th November 2022. She had been provided with notice of the termination of her assignment on 22nd November 2022 but chose not to attend for work with the Respondent after 11th November 2022.

The Complaint

The Appellant clarified to the Court that she had not made a complaint of penalisation under the Act notwithstanding the Adjudication Officer purported to address such a complaint at first instance. She similarly clarified that she was not making a complaint as regards access to collective facilities in the Respondent employment and was not making a complaint as regards information in relation to job vacancies in the Respondent employment.

Summary submission of the Appellant.

The Court made extensive efforts at its hearing to establish the exact nature of the complaint being made by the Appellant who was unrepresented. It appeared to the Court that the key submission of the Appellant was that she was being assigned work above the grade for which she was being paid and this was a breach of the Act by the Respondent. She submitted that she was being paid the rate of pay of a Grade 3 Clerical Officer whereas at least some of the work being asked of her by the Respondent was work of a Grade 4 level. The Court understood the Appellant to be contending that this failure to pay her a Grade 4 rate of pay was a complaint as regards a breach of the Act at Section 6(1)(a).

Summary submission of the Respondent

The Respondent submitted hat it remained unclear as to the specific nature of the alleged breach of the Act grounding the complaint of the Appellant.

The Respondent submitted that the Appellant had been assigned to the Respondent following a request by the Respondent to an employment agency to provide support for a Grade 3 Clerical Officer position and that the Appellant had been provided to the Respondent as a result.

The Respondent had never assigned work to the Appellant that was not appropriate to a Grade 3 Clerical Officer in the employment of the Respondent and no such assignment was made on 11th November 2022, which was the final day of the Appellant’s attendance for work at the Respondent premises.

Discussion and conclusion

The Court is satisfied that it provided the Appellant with every opportunity to set out the detail of her complaint against the Respondent under the Act. The Court has been unable to establish from the Appellant that any issue of assignment of higher-grade work to her throughout her employment or on 11th November 2022 occurred and is consequently unable to conclude that the Respondent was in breach of the Act at Section 6(1)(a) at any material time.

Decision

The appeal of the Appellant must fail. The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
16th January 2025	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.