Complainant

Respondent

Parties

Robert  Frazer

General Paints Limited  

Representatives

  Self-Represented

Emily Maverley of IBEC

Act

Complaint/Dispute 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-00062491-001

26/03/2024

The Complainant referred a complaint to the WRC on the 26th March 2024 wherein he claimed that as an agency worker he was not informed by the Hirer of a vacant position with the Hirer in breach of section 11 of the Protection of Employees (Temporary Agency Work) Act 2012 (hereinafter referred to as “the 2012 Act”).

The Complainant was not represented and made his own case. He relied on the narrative as outlined in the WRC Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to the Complainant reading from the narrative on his complaint form in the making of his case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent was represented by IBEC at the hearing.  The Respondent provided me with a written submission on the 22nd July 2024 together with a comprehensive booklet of documentation and Authorities. No objection was raised in relation to any of the documentary evidence relied upon by the Respondent in the course of making its case. I have additionally heard from a number of witnesses for the Respondent. The Respondent’s witnesses were cross-examined by the Complainant.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing and the oral and written submissions made by and on behalf of the parties at the hearing.

The Complainant referred the within complaint to the WRC on the 26th March 2024 wherein he claimed that as an agency worker he was not informed by the Respondent Hirer of a vacant position with the Respondent.  In the space provided on the WRC Complainant Form he set out “Paragraph 1 of schedule 2 of the Protection of Employees (Temporary Agency Work) Act 2012 Sections: 6,11,13(1),14,23,24” and he detailed his complaint under section 11 of the 2012 Act. No particulars were provided in relation to the alleged breach of sections 6, 13(1), 14, 23 or 24.

The Respondent denied that it breached its obligations under the 2012 Act and it placed the Complainant upon strict proof of it having engaged in any breach of its statutory obligations.

Sections 6, 13(1), 14, 23 and 2024 of the 2012 Act

At the hearing the Complainant proffered no evidence in relation to a breach of sections 6, 13(1), 14, 23 and 24 of the 2012 Act and he stated in direct evidence and under cross-examination that he only had one issue and that was the failure on the part of the Respondent and the employer to advise him of a vacancy within the Respondent organisation.

The Respondent Representative submitted that the Respondent is not an employment agency and therefore sections 13(1) and 23 of the 2012 Act do not apply and that the complaints in respect of sections 6, 14 and 24 of the 2012 Act should fail because the Complainant failed to particularise his claim or adduce evidence and therefore failed to discharge the burden of proof.

In circumstances where it was the Complainant’s oral evidence that his “only issue” was the failure on the part of the Respondent and the employer to advise him of a vacancy within the Respondent, an alleged breach of section 11 of the 2012 Act, and where the Complainant has failed to adduce any oral evidence or produce documentation evidencing a breach of sections 6, 13(1), 14, 23 and 24 of the 2012 Act I find that this aspect of the complaint is not well-founded.

Section 11 of the 2012 Act

I will now turn to consider whether the Respondent has breached its obligations under section 11 of the 2012 Act.

Section 11 of the 2012 Act is entitled “Access to employment by Hirer” and it provides 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.”

“Agency Worker” and “Hirer” are defined in section 2 of the 2012 Act as follows:

“agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

It is common case that at all material times the Complainant was an agency worker and the Respondent was the Hirer.

The Complainant gave evidence that as an agency worker he was not informed of job vacancies that arose during his assignment with the Respondent and in particular the Financial Planning and Analyst (hereinafter referred to as “F P & A”) role. Under cross-examination the Complainant stated that on the 29th May 2023 he attended for interview with the Respondent for the temporary position of a Financial Accountant and that while he was aware that the Respondent was recruiting for the role of Financial Accountant he was not informed of the F P & A vacancy. The Complainant confirmed that after he was assigned to the Respondent’s site as a Financial Accountant he became aware of the F P & A vacancy because he was involved in the budgeting process. He stated that he did not ask anyone about the F P & A role because he did not want to be pushy and because, as a Financial Accountant, he was a in a position of trust and he could not have knowledge and use it for his own advantage.   He stated that he had been excluded from the recruitment process which had commenced in March 2023 and that he only became aware that the Respondent was actively recruiting for the F P & A vacancy in October 2023 when he was sitting next to the person who had been hired to fill the role.

In their evidence the Respondent’s witnesses described how internal job vacancies are communicated within the Respondent. They stated that in March 2023 the F P & A role was identified as a business need in the company. On the 15th March 2023 the Respondent met with a recruitment agency to begin recruiting for the F P & A role where the job specification and salary were agreed. The Respondent informed its employees internally of the F P & A vacancy through an all-staff email on the 27th March 2023 which I note was prior to the Complainant being placed on the Respondent’s Celbridge site as an agency worker. The advertisement for the F P & A role was also published on the Respondent company website as well as Indeed. While I note that the advertisement has since been removed due to the completion of the recruitment process, the Respondent submitted documentary evidence of the communication to the Respondent’s employees on the 27th March 2023, that the role was published publicly and that the advertisement was still active during the Complainant’s assignment on the Respondent’s site. According to the Respondent’s witnesses the Complainant would have had access to the Respondent’s website and would have had the opportunity to apply for the role.

The Respondent’s witnesses gave evidence that they were open and transparent with the Complainant at the interview on the 29th May 2023. They stated that this was the Respondent’s usual practice as they wanted to ensure anyone they interviewed was aware of the environment they could be coming into. They outlined the structure of the finance team and the fact that the Respondent’ s finance department was busy. They informed the Complainant that the Respondent had two open roles at that time, a Financial Accountant role and an F P & A role and they explained why the roles were vacant.

While noting that the Complainant’s first contact with the Respondent did not occurred until after the Respondent had informed its employees of the F P & A vacancy I am of the view that in the instant case it is nonetheless necessary to address the conflict in evidence between the Complainant and the witnesses on behalf of the Respondent in light of the case being made by the Complainant. On balance, having regard to the oral and documentary evidence, I resolve the conflict in evidence in favour of the Respondent. I find that the Complainant was informed at the interview on the 29th May 2023 that there were two vacancies on the Respondent’s finance team and that the Respondent was recruiting for the two roles, namely a Financial Accountant and an F P & A and that during the course of his assignment with the Respondent as a Financial Accountant the Complainant was on notice of the F P & A vacancy.

In conclusion, taking into consideration the oral evidence of the parties and the documentation and case law submitted to the WRC, I am satisfied that the Complainant’s status as an agency worker was of no detriment to the Complainant in his access to employment with the Respondent. The Complainant was not assigned to work for the Respondent, the Hirer, when the Respondent’s employees were informed of the vacant position of employment with the Respondent. The F P & A vacancy was advertised internally three months prior to the Complainant being placed on the Respondent’s site meaning the Respondent would not have met or known the Complainant at the time its employees were informed of the vacancy. The Complainant was informed by the Respondent’s Head of Finance and HR Manager at the interview on the 29th May 2023 that the Respondent was recruiting for two vacancies on the finance team, a Financial Accountant and an F P & A and during the course of his assignment with the Respondent as a Financial Accountant the Complainant was on notice of the F P & A vacancy and the Complainant could have applied for the role.

In light of the foregoing I find that the Respondent has not breached section 11 of the 2012 Act and consequently this aspect of the complaint is not well-founded.

For the reasons set out above I find that the complaint is not well-founded.