ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016069
A Customer Services Administrator
An Employment Agency
Lars Asmussen, BL
Anne Marie Burke, IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012
Date of Adjudication Hearing: 12/12/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, these complaints were assigned to me by the Director General. I conducted a hearing on December 12th 2018 and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
The respondent in this case is an employment agency and the complaint is linked to a group of complaints submitted against another respondent, a “hirer” under ADJ-00016067. Both sets of complaints were heard together. The complainant was represented by Mr Lars Asmussen, instructed by Mr Seán Ormonde of Ormonde Solicitors. The respondent in this case was represented by Ms Ann-Marie Burke of IBEC. Mr Liam Dunne of Byrne Wallace Solicitors represented the hirer. An executive of each of the respondent companies also attended the hearing.
At the opening of the hearing, complaint number CA-00020854-001 under the Employment Equality Acts 1998 – 2015 was withdrawn. This decision therefore, is in respect of the complaint under the Protection of Employees (Agency Work) Act 2012.
At the hearing on December 12th 2018, the complainant, for the first time, set out the details of her complaint against this respondent. It was agreed that Ms Burke would provide a detailed submission after the hearing. This was received on February 28th 2019 and I have considered the contents in the findings that are set out below.
I wish to acknowledge the delay issuing a decision on this matter and I apologise for the inconvenience that this may have caused for the parties.
On October 10th 2010, the complainant commenced employment with the respondent as an agency worker. She was assigned by the agency to work as a customer services administrator with a parking services company, (“the hirer”). From the start of her employment and, for several years, the complainant said that she worked around 30 hours each week; however, towards the end of her service, she claims that her hours were significantly reduced. At the termination of her employment, her hourly rate was €11.80. At the opening of the hearing, Mr Asmussen said that the complainant earned an average of €220 per week.
In this complaint under section 25 of the Protection of Employees (Temporary Agency Work) Act 2012, (“the Act”), the complainant said that she was treated less favourably compared to other employees who were not agency workers, and specifically, contrary to section 6 of the Act, she was given less shifts than the hirer’s permanent employees.
Summary of Complainant’s Case:
Less Favourable Conditions of Employment
Around September 2017, the complainant discovered that the hirer’s permanent part-time employees were being paid €11.80 per hour, whereas she was paid €11.50 per hour.
On March 10th 2018, the complainant said that she arrived at work at 2.00pm and found that the computer at her usual work station wasn’t working. She tried to log on to other computers, but without success. Eventually, when one of her colleagues finished her shift, she logged on to a computer. In response to cross-examining, the complainant said that she needed to have access to all the computers in the office so that she could work from any desk. She said that she didn’t have time to check if she had access, because she needed access to six or seven different applications and it would have taken 20 minutes to check the access to each one. The complainant said that her point is that she had been saying for years that she hadn’t got access to all the computers and she said that is evidence of unfair treatment. Around this time, the complainant said that she began to be assigned to do entry-level work.
In an e-mail from a supervisor on March 14th 2018, the complainant was asked to explain why certain tasks were not completed during her shift the previous Saturday. The complainant said that her mailbox was full and that she sent an e-mail to ask for this to be resolved so that she could get on with her tasks. She objected to the tone of the e-mail from her supervisor and, in her evidence, she described it as harassment. In cross-examination, the complainant said that “she could have talked to me and asked me why I hadn’t completed certain tasks.” She said also that this supervisor rostered her for “erratic shifts.”
Throughout her tenure with the respondent, the complainant said that she didn’t get her proper breaks. Generally, she started work when the permanent employees were leaving at 6.00pm and on most shifts, she had no chance to take a break due to the shortage of staff to cover for her. She said that she claimed for the hours that she worked when she should have been on a break.
At the end of her direct evidence, the complainant said that when she arrived to work at weekends, her e-mail inbox was full because she was set up to deal with all the appeals from people disputing their parking penalties. She said that her supervisor, NC, used this as a form of harassment.
In her submission, the complainant said that the respondent placed the complainant in vulnerable situations by rostering her alongside colleagues against whom she raised a complaint of bullying. She claims that she had to take time off so that she would not have to work with these people. Concluding her submission, the complainant said that all of this had a negative effect on her health and she became anxious about going to work. During a mediation meeting at the WRC on May 22nd 2018, the complainant informed her employer that she was resigning.
Reduction in Shifts
In August 2017, the complainant said that a permanent part-time job was advertised by the hirer. The complainant would have been suitable for this job. She claims that she wasn’t informed about the vacancy and she wasn’t invited to apply. Following the advertisement, two new permanent part-time people were recruited. When the new hires joined, the complainant said that hours that were previously available to her during the week were no longer available.
The complainant’s case in relation to this issue is that directly-employed, permanent staff were guaranteed work by the hirer whereas, as an agency worker, she was not guaranteed work.
In cross-examination at the hearing, the complainant said that she didn’t notice the ad for these jobs and that the company never advertised a permanent part-time job before and she never enquired about such a role. She agreed that in 2014, having been interviewed for a full-time job, she was offered the role, but she turned it down. She said that the reason was because the wages were less than what she earned as an agency worker. The complainant agreed that she didn’t apply for a permanent part-time position that was advertised in January 2018.
The complainant said that, following the recruitment of the two new employees, her hours were changed without consultation with her. In an e-mail to a manager, “AC,” that was submitted in evidence, she said that she was recruited to work mostly weekends and nights but that she worked full-time when it suited the hirer. Now she found that her shifts were being given to the new people. She was also being rostered for times when she claims the hirer knew she wasn’t available, on Tuesdays and Thursdays after 5.00pm, when she went to college. The complainant said that her hours were being reduced and she couldn’t survive on €100 per week and she started to think she would have to leave. In October 2017, she informed AC that she was considering making a complaint to the WRC. AC replied to this e-mail on October 25th and sent the complainant a copy of the hirer’s grievance procedure. A meeting was arranged for October 26th at which the complainant said that she would prefer to try to resolve her issues informally in discussions with AC.
At the hearing, the complainant said that she sent multiple e mails to the mangers at the respondent company and to a new supervisor, “ND,” about the reduction in her hours. She said that she got no response. She said that she had a meeting in early December at which she explained how her hours had been impacted. A letter was included in the complainant’s book of papers dated December 8th 2017. This is from AC in response to the complainant’s e-mail of November 27th 2017, in which she alleged that she was being discriminated against and treated unfairly. In his response, AC addressed the issues raised by the complainant and explained to her that,
“The nature of our contract with (the employment agency) is that the hours required to be covered will be varied and go up and down according to requirements. As such we cannot guarantee minimum hours or particular days for (agency) staff but do try and accommodate people’s availability where possible.”
AC enclosed a copy of the hirer’s grievance procedure and the bullying and harassment policies and advised the complainant that she may take the matter further using these procedures or by contacting the relevant person in the respondent’s company. At the hearing, the complainant said that this was an unsatisfactory end to the grievance. However, she said that she didn’t submit a formal grievance because she said she “knew it wouldn’t go anywhere.”
On January 2nd 2018, AC sent the complainant an e-mail and invited her to apply for a new permanent part-time role. The complainant was on holidays at the time, and she replied to AC and informed him that she was “not in a position to apply.” In her e-mail she said,
“I was not offered this opportunity last August when (the respondent) first hired permanently on a part-time contract. The massive reduction in my working hours put me under huge financial stress so much that out of desperation, I approached (the employment agency) for another job.”
Concluding her e-mail, the complainant said that she was declining the offer and that she was going to lodge a complaint with the WRC because she was “not treated in a fair manner compared to other newer staff members.”
Summary of Respondent’s Case:
Less Favourable Conditions of Employment
Section 6(1) of the Protection of Employees (Temporary Agency Work) Act provides that agency workers are entitled to the same basic working conditions as the permanent employees of a hirer. Basic working and employment conditions are narrowly defined 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 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.
It is the respondent’s case that the complainant has not provided any evidence that any enactment or collective agreement in the hirer’s company is applied less favourably to her compared to its direct employees.
In April 2018, the complainant reported to the respondent that permanent customer services administrators in the hirer’s company were being paid €11.80 per hour compared to the complainant’s hourly rate of €11.50. The respondent had not been notified of this and on May 18th 2018, the respondent notified the complainant that her hourly rate would be increased to €11.80. The complainant was also paid arrears of €523. At the adjudication hearing on December 12th, the complainant said that the correct amount due was €579.45. The difference of €56.45 was paid to the complainant after the hearing.
Also in April 2018, the complainant said that she had a problem with the hirer’s “hot desk” policy, the shifts that she had been given and treatment by the hirer’s managers. The complainant was advised to have her grievance dealt with by using the respondent’s grievance procedure, but she informed the respondent that she had submitted a complaint against the hirer to the WRC and that she had agreed to attend mediation. The respondent was then informed that, at the mediation meeting on May 22nd 2018, the complainant resigned.
The respondent’s submission notes that a “hot desk” policy applied to all the hirer’s employees and the complainant acknowledged this at the hearing on December 12th 2018.
The complainant also alleged that she was not able to take her breaks at work, because she worked part of some shifts on her own. She did not specify the dates on which this occurred.
The respondent’s position is that all the direct employees of the hirer worked part of their shifts on their own, if they worked a particular late shift. The issue of not being able to take a break is therefore not specific to agency workers, but is more properly a complaint under the Organisation of Working Time Act.
The respondent accepts that there was a discrepancy in the rate of pay applied to the complainant compared to the hirer’s direct employees. However, this was resolved as soon as the respondent became aware of the issue and arrears were paid to the complainant. The respondent argues that compensation is not appropriate in circumstances where the respondent was not aware that the rate of pay had increased in the hirer’s company and where the correct rate and arrears were paid to the complainant as soon as the respondent became aware of the discrepancy.
Reduction in Shifts
The complainant said that from the time that the hirer’s new part-time employees were recruited, she was rostered for less shifts and that she got “erratic shifts.” The respondent argued that the issue of hours of work is not included in the list of basic working conditions set out at section 2 of the Protection of Employees (Temporary Agency Work) Act 2012. On this basis, Ms Burke submitted that there is no jurisdiction under this Act to adjudicate on a complaint about hours of work. There is no collective agreement, and no arrangement related to working time in the hirer organisation; therefore, the complainant cannot claim to be excluded from any agreement or arrangement that was in place for the hirer’s direct employees.
The respondent’s submission notes that, while the complainant may have had a grievance about her roster, she was invited to pursue this by using the respondent’s grievance procedure, but she did not do so. However, the choice of shifts does not fall within the definition of working time and is therefore outside the scope of the Act.
For completeness, the respondent addressed the complainant’s contention that she was treated less favourably than the hirer’s direct employees when it came to rostering. Ms Burke said that directly-employed customer services representatives were allocated shifts depending on the needs of the business and their availability. There was no general rights to shifts or hours for any employee and all staff, including the complainant, were asked for their availability in advance of rostering. This availability is taken into account as far as possible and rosters are issued one week in advance. Swaps can be arranged by contacting a supervisor.
At the hearing on December 12th, the complainant said that she had a good relationship with a manager, “AB” and that she was often given ad-hoc shifts that became available. The complainant was working full-time for another employer from April to August 2017, and then from November 2017 onwards and she also had college commitments on Tuesdays and Thursday evenings and some Saturdays. This restricted her availability for work with the hirer and also impacted on the times that she was available. A document included with the respondent’s submission of February 2019 shows that in 2015, the complainant worked an average of 27 hours a week for the hirer. That year, she did a number of shifts during week days. In 2016, she worked an average of 23 hours a week and in 2017, she worked an average of 20 hours. The respondent’s submission notes that there were many occasions in 2017 when the complainant wasn’t available.
Findings and Conclusions:
As has been noted in the respondent’s submission, section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 sets out a narrow definition of working conditions. The extension of rights or entitlements to agency workers that do not apply to permanent employees is not a feature of this legislation, regardless of the length of service of an agency worker, or any other characteristic that they consider might confer advantages on them. The right to be assigned to a certain roster or to specific shifts is not included in the list of basic rights.
The complainant in this case had a right to be treated in the same manner as the directly-employed customer services staff in the hirer’s organisation. Having examined the evidence in this case, apart from the discrepancy with regard to her hourly rate of pay, I find that she was not treated less favourably or given less rights or entitlements than the hirer’s permanent staff.
In the last quarter of 2017, the complainant’s rate of pay was €11.50 per hour, compared to €11.80 that was paid to the hirer’s direct employees. I was informed at the hearing that this occurred because the hirer failed to notify the respondent of an increase in the rate of pay for customer services staff. In May 2018, the respondent adjusted the complainant’s rate of pay and paid her the arrears that were due, but there was still a shortfall of €56.45 which I understand was paid to the complainant following the hearing in December. It is my view that there should have been some mechanism in place between the respondent and the hiring organisation to ensure that, at all times, the complainant was paid the same hourly rate as her directly-hired colleagues and I find that this failure is a breach of section 6 of the Act.
The complainant alleged that she did not always get the rest breaks at work to which she was entitled when she worked alone on some shifts. She provided no details of the occasions when this occurred, and she alleged that it happened from 2010, when she the commenced her assignment with the hirer. It is apparent from the evidence, that the hirer’s direct employees were in the same predicament as the complainant in respect of this matter, and therefore, any breach applied equally to agency and permanent employees. In any event, this is a complaint more properly for consideration under the Organisation of Working Time Act 1997.
The focus of the complainant’s grievance in respect of how she was treated relates to her perception that she was not given the same number of shifts as the hirer’s direct employees. The evidence submitted by the respondent refutes this. It is clear from the information provided that the complainant worked an average of 23 hours a week in 2016 and 20 hours in 2017. It is my view that this average reduction of three hours a week arose because of the complainant’s reduced availability due to working from Monday to Friday in another job and her commitment to a college course two evenings a week and on one Saturday a month.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have concluded that the respondent was in breach of section 6 of the Protection of Employees (Temporary Agency Work) Act 2012 when the complainant was not paid the equivalent hourly rate of pay as directly-hired workers in the company to which she was assigned as an agency worker. While I am satisfied that this discrepancy was ultimately resolved, the fact of it occurring and the lateness and inaccuracy of the resolution was unacceptable. I decide that the respondent is to pay the complainant €1,000, equivalent to approximately four weeks’ pay, as compensation for this breach of the Act.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Agency work, less favourable treatment