EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr T. O'Sullivan
Mr J. Flannery
heard this claim at Dublin on 18th June 2013
Claimant: Mr Brendan Frawley, Kennedys, Solicitors, Ulysses House,
Foley Street, Dublin 1
The Tribunal has carefully considered the submissions, legal argument and oral evidence adduced in the course of this hearing.
At this time, the Tribunal is containing itself to considering the issue of determining which of the two named respondents is the correct employer in this situation.
Many of the facts are agreed, so for instance it is accepted that the claimant came to the Houses of the Oireachtas in a voluntary capacity and having learnt a little about how things operated was introduced to a T.D. in need of secretarial assistance. It seems that the T.D. in question was fortunate enough to have, over the course of his time in the Dail, up to three parliamentary/ secretarial assistants working for him and in his interests. This was certainly unusual as the funding or allowances only ever allowed for two such vacancies. The claimant worked for the better part of ten years with this T.D. and clearly found her job enjoyable and fulfilling. It is quite possible that during this time the claimant did not have much need to consider who her employer was. There can be no doubt she took her day to day instruction from the T.D. in question but her paycheques were issued by the payroll under the name of The Houses of the Oireachtas. It has been put to the Tribunal that the situation in operation is very much akin to the situation in a national school wherein remuneration is paid directly by the Department of Education though the localised board of management has the exclusive right to hire and dismiss teaching staff.
The Tribunal has been invited to consider the case of Anne Holliday v The Houses of the Oireachtas JR 75/93 wherein the High Court (Keane J) found that the choice of employee was entirely in the gift of the Dail deputy and the Dail deputy is considered the employer. Despite the remuneration coming from the Department of Finance/House of the Oireachtas the employee is not converted to an employee of the Department of Finance. The Tribunal finds that this finding continues to be good law.
It was further put to the Tribunal that the claimant was well aware of the “scheme” in operation which provided for the pension of parliamentary secretaries and assistants to Dail deputies. The scheme does not purport to confer employee status as has been claimed here by the claimant.
The Tribunal notes that in 2008 Regulation 11 of S.I. No. 36/2008 clarified the situation in regards to the status of the person providing secretarial facilities as being “the employee of the person to whom the facility is provided”. This enactment does post-date the commencement of the employment between the parties herein and therefore the Tribunal would prefer to be bound by the Holliday case in all the circumstances and this case is seen to have been the trigger for the regulation in question.
The claimant has put forward the proposition that the Houses of the Oireachtas was a “co-employer” of the claimant and, as such, carried the responsibility of an employer and cannot attempt to distance itself from the claimant who, it is agreed, gave about eleven years of service within the Houses of the Oireachtas. The respondent has argued that no such concept is recognised in law and has invited the Tribunal to consider the Transfer of Undertaking scenario (with which the Tribunal is familiar) wherein the time and date of transfer can often be difficult to pin point but there never can be a point at which an employee is ultimately answerable to two employers.
Again, the Tribunal must look at the formula of whosoever gave day to day instruction and direction to an employee, in conjunction with how the employee came to be engaged, as well as the manner and method of payment. In looking at all these factors the Tribunal has to look at the relationship “in the round” to determine who the employer is.
It has not been suggested to the Tribunal that the claimant, as an employee of the Houses of the Oireachtas, was on some sort of secondment arrangement with the Dail or deputy with whom she worked for over the years and evidence the Tribunal has heard does not tend to suggest such a situation existed between the parties.
The Tribunal finds that the claimant would have to establish that if the Houses of Oireachtas was her employer, that they intended to be her employer and were understood by the claimant to be her employer for the duration of her tenure in the Houses. There is no evidence to suggest that the claimant had this misunderstanding. In her evidence she conceded that both she and the deputy with whom she worked for ten years kept their heads down regarding her position as they knew she was extra to the allocation given to most Dail deputies.
It was only when the Dail deputy, that has originally taken the claimant on as his personal assistant, indicated that he was retiring from politics, that the question of the claimants future within the Houses of the Oireachtas came into focus. The deputy’s act of retirement did not, the Tribunal finds, cause the claimant to, in some way revert back to or become an employee of the Houses of the Oireachtas. No interpretation of the law and case law could allow the Tribunal to make such a finding and the Tribunal finds itself bound by the Holliday case already mentioned and by the case of O’Keeffe v HickeyAnd Others(2009) 2 I.R. which sets out the limited role of the pay master in this regard.
The second named respondent is hereby released.
Sealed with the Seal of the
Employment Appeals Tribunal