DWT253

PARTIES:

DIVISION:

SUBJECT:

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

BACKGROUND:

The Employee appealed the Adjudication Officer's Decision to the Labour Court on the 15 May 2024. A Labour Court Hearing took place on the 10 December 2024.

The following is the Labour 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 Organisation of Working Time Act, 1997 (the Act) in her complaint against the Health Service Executive (the Respondent).

The Appellant contended that the Respondent did not keep the records required by the statute at Section 25(1) so as to show that the Act was being complied with.

The Respondent contended that the Appellant was at no time an employee of the Respondent within the meaning of the Act and was at all material times an employee of the Agency which assigned her to work with the Respondent in accordance with the terms of her employment with that Agency.

The Court proposed that it would deal with this initial issue as a preliminary matter because a decision on this aspect of the matter had the potential to dispose of the matter in its entirety. Both parties agreed that this would be the appropriate approach to take in relation to the within appeal and both parties understood that a hearing of the parties in relation to the substantive complaint would only be required if the Court decided this preliminary matter in the favour of the Appellant.

Law relevant to the preliminary matter.

The Act at Section 2 in relevant part sets out the interpretation to be applied to certain terms utilised in the Act as follows:

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of F3[this Act and the Activities of Doctors in Training Regulations], a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the F4[Local Government Act 2001 (as amended by the Local Government Reform Act 2014),] or of a harbour authority, health board or F5[a member of staff of an education and training board] shall be deemed to be an employee employed by the authority, board or committee, as the case may be;

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

The Act at Section 25(1) makes provision as follows:

Records.

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this F22[Act and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

Submission in relevant part of the parties

Both parties agreed that the Appellant did not enter into a contract or work under a contract of employment with the Respondent. She did enter into a contract with another entity which was, by common case, an employment agency. It was also common case that this agency placed the Appellant with the Respondent to carry out work for a period of time. That entity was an entity, according to the Respondent, with which it held a contract as an agency contracted to provide persons to carry out work in the Respondent organisation.

It is clear to the Court that the employer of the Appellant at all material times was an agency with whom she held a contract of employment. The Respondent therefore was not at any material time the employer of the Appellant within the meaning of the Act. Similarly, the Appellant was at no material time an employee of the Respondent within the meaning of the Act.

Having reached this conclusion on the basis of the undisputed factual matrix of the matter, the Court must conclude that the appeal of the Appellant must fail.

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.