Worker

Employer

Anonymised Parties

A Receptionist/Communications Assistant

A Cultural Institution.

Representatives

Vivian Cullen of  SIPTU-Trade Union

Paul Gough , Solicitor of Beauchamps

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 - 00002808

02/07/2024

The issue in dispute concerns the question of allowing incremental credit to the Worker, on Permanent Appointment to the staff of the Employer, for 7 years’ service in the same position as an Agency Worker.

The Employment via the Agency began on the 6th November 2017 and continued with a Permanent staff appointment on the 1st May 2023.

The rate of pay was fortnightly at a stated rate of €996.28 for a 35-hour week.

The Worker was employed via an Agency since the 6th November 2017. He was under the direct control of the Institute’s Mangers and had no day-to-day relationship with the Agency. By all objective standards he was, in effect, a direct employee.

The Worker cited the Protection of Employees (Temporary Agency Workers Act,2012 and EU Directive 2008/104/EC in his favour.

On appointment to the Permanent staff in May 2023 he was in all equity and natural justice entitled to credit for the 7 years prior Institute service.

The Employer relied almost exclusively on DPER Circular 08/2019 regarding “Revised Arrangements applying to starting pay.”

The opening section instructs Public Employers to only allow starting pay from Open Competition to be at the fist point of the pay scale, in this case the Clerical Officer scale.

In addition, the case has widespread implications and the Body of Workers prohibition in the Industrial Relations Act,1969 has to apply.

The Adjudication Officer has no proper jurisdiction to hear this case.

In the late submission the Employer pointed to numerous other vacancies at the Higher Executive Office rate that the Worker could have applied for with some prospect to success.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The argument advanced by the Employer or more precisely that which the Employer, despite clear and not disguised reservations, was directed to advance by outside influencers, was initially that this was a “Body of Workers case” and thus non justiciable by an Adjudication Officer.

Normally, this would be a compelling argument but on reflection not one that was designed by the Authors of the Industrial Relations Act,1969 to provide an “avenue of avoidance” for Employers when the facts of the ground, for an individual, indicate a grievous personal injustice.

The rules of Natural Justice as set out in numerous Higher Court and Supreme Court decisions always reference the need for Adjudicators to “Examine the facts on the Ground and the particular “evidential nexus” of a case” before relying exclusively on a piece of Legislation.

On this ground the “Non justiciable Body of Workers” argument is not accepted.

The evidence and the “facts on the ground” as presented by the Oral Testimony and supporting written submissions indicate that the Worker was effectively a “direct” employee since November 6th, 2017.

Any examination using accepted Legal precedents in the area, especially  the most disputed FOR as opposed to OF nature of ,would countenance and strongly support this view. The subsidiary Respondent argument that the employment was a “Service Contract” is also worth noting in this context but was clearly advanced as a lesser point.

Overall, the now hallmark judgement of Revenue v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24 would make interesting reading in this case.

The Worker is accordingly, clearly, due the benefit of Section 1.2 of the DEPR Circular – “Pay on Competitions confined to existing civil servants”. In plain English “the next nearest point plus one”.

Incremental Credit, Previous Service