INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 25(2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012
CLS RECRUITMENT GROUP LTD
- AND -
MICHAEL JOHN HOGAN
(REPRESENTED BY FRANK RYAN)
Chairman: Mr Foley
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Appealing against a Rights Commissioner's Decision r-154686-taw-15/gc.
2. The Worker appealed the Rights Commissioner’s Decision to the Labour Court on the 18th August, 2015, in accordance with Section 25(2) of the Protection of Employees (Temporary Agency Work) Act, 2012. The Court heard the appeal on the 10th November, 2015.The following is the Court's Determination.
This is an appeal by the Complainant of a decision of a Rights Commissioner made under the Protection of Employees (Temporary Agency Work) Act, 2012 (the Act). The complaint under the Act was made on 21stMarch 2015. The complainant ceased employment with the respondent on 2ndOctober 2014. The Rights Commissioner decided that the Claim of the appellant was well founded and required the respondent to pay the Claimant the sum of €1,756.88.
Summary of the Complainant’s case
The Complainant was employed by the respondent to work at the Nenagh Swimming Pool site of PJ McLoughlin Ltd as a shuttering carpenter from March 19th2013. The Complainant contended that, contrary to the Act, his terms and conditions of employment were less than those of a shuttering carpenter employed directly by PJ McLoughlin. In particular the complainant contended that his hourly rate of pay was less than that of the directly employed shuttering carpenter and as a result both his hourly rate and certain specified payments based on his hourly rate were incorrectly calculated contrary to the Act. The complainant withdrew a complaint as regards payment of a weekly allowance at the hearing.
Summary of the Respondent’s case
The respondent stated that the complainant was paid in accordance with his contract and that no evidence had been afforded the respondent to support a contention that he was paid less than a person carrying out the same role as a directly employed shuttering carpenter of PJ McLoughlin.
The Act, at Schedule 2, section 1(4) and 1(5) provides as follows
- (4) A rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
The Court is satisfied on the basis of information supplied by the complainant that the complainant did avail of professional advice in December 2014.
In so far as the Claimant was unaware of his entitlements under the Act, the decision of Laffoy J inMinister for Finance v Civil and Public Services Union & Ors 18 ELR 36, is clear authority for the proposition that the absence of actual knowledge on the part of a claimant concerning his or her legal rights cannot be relied upon to excuse a failure to make a claim within the statutory time-limit of 6 months.
Having regard to all the circumstances in the instant case, the Court cannot accept that reasonable cause has been shown for the delay in making the within claim. Accordingly the Court cannot hold that an extension of time is allowable in this case. It follows that the cognisable period for this claim is the six-month period ending on the date on which the complaint was presented, namely, from 20thSeptember 2014 to 21stMarch 2015.
The Act, at Section 6(1) provides as follows:
- 6.— (1) Subject to any collective agreement for the time being standing approved under section 8 , an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.
- “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 hirer, and that relate to—
(b) working time,
(c) rest periods,
(d) rest breaks during the working day,
(e) night work,
(g) annual leave, or
(h) public holidays;
In the instant case the complainant contends that he carried out the same work as a named comparator directly employed by the hirer. The complainant contends that he received lesser basic terms and conditions than the named comparator. Specifically the complainant contends that he was paid a lesser rate of pay than the named comparator. The complainant put information before the Court to support his contention.
The respondent, for the reason of lack of knowledge or information, did not dispute the contention that lesser rates of pay applied to the complainant than applied to the named comparator. The respondent indicated to the Court that it could not offer to the Court any evidence as regards the basic terms and conditions of the comparator.
The Court finds that the respondent was in breach of the Act. The Court determines that the respondent should pay to the complainant a sum of €976.40 in compensation for the breach of the Act. The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
1st December, 2015Deputy Chairman
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.