ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008703
| Complainant | Respondent |
Anonymised Parties | Administrator | Recruitment Agency |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011585-001 | 26/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011585-002 | 26/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001 | CA-00011585-003 | 26/05/2017 |
Date of Adjudication Hearing: 08/01/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 79 of the Employment Equality Acts, 1998 - 2015 and/or Section 19 of the Carer’s Leave Act 2001following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant did not attend and was not represented at the hearing. |
Summary of Respondent’s Case:
The respondent made the following preliminary submission – It was submitted that the identity of the employer should be determined at the outset.It was submitted that for the purpose of the Unfair Dismissals legislation the employer of an agency worker is the person / entity for whom the employee actually works rather than the agency.The respondent is a small recruitment agency – the claimant was placed with and worked exclusively as a ‘temp’ for a public sector employer in the education sector hereafter referred to as MSL.The claimant worked under the sole control of MSL having commenced in October 2010.MSL was responsible for paying the claimant and for her annual leave entitlements and this was facilitated by the respondent .The definition of an agency worker under the Protection of Employees (Temporary Agency Work ) Act 2012 was referenced and it was submitted that the respondent was unaware of any complaints made by the claimant regarding her conditions of employment.It was asserted that the claimant’s rights were observed while she was in employment with “ the employer through the respondent”.Section 13 specifies “ Where , whether before , on or after the commencement of this Act , an individual agrees with another person , who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business , to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or sevice ), then , for the purposes of the Principal Act , as respects a dismissal occurring after such commencement – (a)the individual shall be deemed to be an employee employed by the third person under a contract of employment ,(b) if the contract was made before such commencement , it shall be deemed to have been made upon such commencement , and (c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.It was submitted that the application of Section 13 must be applied to the unfair dismissals complaint.I was advanced that the claimant’s complaint should be dismissed by way of a determination of this preliminary issue.It was further submitted that the complaint can alternatively be dismissed by virtue of Section 41(1) of the Workplace Relations Act 2015. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 19 of the Carer’s Leave Act 2001 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Had the claimant attended the hearing , there may well have been further information advanced in relation to the identity of the respondent under one or all 3 Acts. However , in light of her non attendance , I must find that the complaints fail for lack of prosecution. |
Dated: 03.05.2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea