ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038061
Parties:
| Complainant | Respondent |
Parties | Denis Jude Haughton | Department of Justice |
Representatives | In person | Emma Cassidy B.L. instructed by Chief State Solicitor's Office |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049218-001 | 14/03/2022 |
Date of Adjudication Hearing: 27/09/2022
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This complaint relates to written terms and conditions of employment that the complaint states he did not receive from the respondent. The complainant has been corresponding with the respondent for a number of years in relation to issues of concern to him. The complainant considers his representations to the Department to be “pensionable employment” and is seeking “terms” including payment for the work that he states he has carried out.
The complainant submitted documentation both in advance of and after the adjudication hearing had concluded. The most recent date of receipt of additional information from the complainant was 28th November 2022. |
Respondent Preliminary Point: Employment Status
By way of preliminary submission, the respondent outlined that the complainant is not an employee and has never been engaged on any contractual basis whatsoever. The respondent further stated that the complainant’s representations to the Department do not establish and employer/employee relationship. The respondent’s position is that, as the complainant is not an employee, the Workplace Relations Commission does not have jurisdiction under the Terms of Employment (Information) Act, 1994. |
Complainant Summary of Complainant’s Case:
In relation to his representations, the complainant stated that he was referred to the Department of Justice with his concerns but has not received the engagement and direction that he has sought. The complainant submits that he has not received “terms” and that matters of concern raised by him relating to, inter alia, Irish language publications have not been addressed and remain outstanding. The complainant also contends that he has not been paid for the work that he has done. In respect of his employment status the complainant accepted at the adjudication hearing that he was not an employee of the Department and stated that he had never claimed to be a serving employee. |
Findings and Conclusions:
The complainant contends that he has not received written “terms” in relation to work that he claims he has carried out over a number of years. The complainant accepts he is not an employee of the respondent. The Applicable Law Section 1 of the Terms of Employment (Information) Act, 1994 states as follows: Interpretation. 1(1) In this Act— “the Act of 1973” means the Minimum Notice and Terms of Employment Act, 1973; ‘Commission’ means the Workplace Relations Commission. contract of employment’ means— (a) a contract of service or apprenticeship, or (b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 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), whether the contract is express or implied and if express, whether it is oral or in writing; “the Council Directive” means Council Directive No. 91/533/EEC of 14 October, 1991(1); “employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be; “employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer; Having regard to the written and oral submissions of the parties, I find that as the complainant is not an employee of the respondent, he does not come within the scope of the legislation. Accordingly, the complaint cannot succeed. |
Decision:
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.
Having considered the oral and written submissions of the parties, I find that the complaint is not well founded. |
Dated: 03rd January 2023
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Terms of Employment |