AWD203

1. An appeal of an Adjudication Officer's Decision No. ADJ-00017752 CA-00022919-001

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 16 October 2020. The following is the Court's Determination:



DETERMINATION :

Mr Andrzej Wrodarczyk brought a complaint before an Adjudication Officer pursuant to the Protection of Employees (Temporary Agency Work) Act 2012 (the Act) alleging a breach of Section 6 by his employer, CPL Solutions Limited t/a Flexsource Solutions. The Adjudication Officer in Decision number ADJ-00017752, CA-00022916-001 dated 13^th December 2019 upheld the complaint and awarded the sum of €2,500.00. The Employer appealed the Decision on 21^st January 2020.

For ease of reference the parties are referred to as they were at first instance. Hence Mr Andrzej Wrodarczyk is referred to as “the Complainant” and CPL Solutions Limited t/a Flexsource Solutions is referred to as “the Respondent”.

The Complainant submitted a claim under the Act to the Workplace Relations Commission on 30^th October 2018.

Background

The Respondent is a registered employment agency. The Complainant commenced employment with the Respondent on 30^th October 2018 as a temporary agency worker, placed with the agency’s client, Tesco Ireland Distribution Centre, Donabate (“the Hirer”). He works on the Hirer’s site as a Warehouse Operative. In his complaint under the Act the Complainant submitted that he was not entitled to the same representation rights at disciplinary meetings as direct employees of the Hirer who carry out like work with the Complainant.

The Claim

The Complainant contends that he was not provided with same conditions to that which he would have been provided had he been employed directly by the Hirer to perform the same work. The claim is made in reliance on section 6(1) of the Act. He contended that at investigative/disciplinary meetings held on 2^nd and 15^th August 2018, he was not allowed to bring a representative chosen from among employees of the Hirer company but was instead instructed that he could bring a fellow employee of the Agency.

The Law Applicable

Section 6(1) of the Act provides that an agency worker is entitled to the same ‘basic working and employment conditions’ as those to which he or she would be entitled if employed by the Hirer.

The meaning to be ascribed to the term ‘basic working and employment conditions’ is set out at Section 2 of the Act as follows: -

• “basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hire, and that relate to-

  (a) pay,

  (b) working time,

  (c) rest periods,

  (d) rest breaks during the working day,

  (e) night work,

  (f) overtime,

  (g) annual leave, or

  (h) public holidays;

Determination

The Decision of the Adjudication Officer is overturned, and the appeal is allowed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
16 October 2020	______________________
CC	Deputy Chairman