Complainant

Respondent

Parties

Michael Collins

Ocs One Complete Solution Limited

Representatives

Appeared In Person with two support persons

Daire Ferguson, IBEC Executive and Ms Natalie Mc Grath. HR Manager

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00061371-001

02/02/2024

On February 2, 2024, the Complainant, a contract cleaner and litigant in person submitted a complaint of penalisation against an employer to whom he had been hired out by an Employment Agency for exercising rights arising from the Protection of Employees (Temporary Agency Work) Act, 2012.

On February 7, 2024, the Respondent, Ocs One Complete Solution Ltd received a copy of the complaint. On March 8, 2024, IBEC came to notice of the case.

The Parties were invited to a hearing scheduled for 24 April and 26 June ,2024. The Respondent secured two postponements.

On 23 April 2024, I wrote to the Respondent at IBEC seeking a copy of the respondent submission to match that already on file from the complainant.

 I sought relevant submissions and documentation.

I did not receive a reply.

The Complainant continued to submit periodic updates, which were shared with the Respondent.

On 8 April 2025, the case was scheduled for hearing on 20 June 2025 at 11.30 am in Cork.

IBEC, on behalf of the Respondent submitted an outline submission on May 30, 2025.

This submission outlined a first in time Preliminary Argument on Jurisdiction in the case.

The Complainant did not address this pre hearing.

At hearing, I explained to the parties how this Argument would be addressed, where both sides would be heard on this Preliminary Argument on Jurisdiction.

 If I found out in favour of the complainant on the preliminary issue, I would recall the parties and press on to hear the substantive claim.

 If I found in favour of the Respondent, I would be prevented from taking the matter any further in law.

 I explained the right of appeal in existence before the Labour Court.

The Complainant outlined that he had worked for the Respondent from 9 February 2008, in return for a fortnightly nett pay of €482.28, 16 hours per week.

He did not allocate time to explain how his employment had transitioned from ISS Facility Services to OCS in October 2023. However, he exhibited a Statement of Employee Terms and Conditions signed and dated by employer and employee 30 September 2023 on the cusp of the take over.

Start date 18 March 2008

Employment Regulation Order applied to the employment

Holidays on transfer were to be confirmed

Trade Union member (unknown) Statutory sick pay.

Wage per hour €13.38 for 18 hrs of contract.

I found this to be a useful guidance document, in particular on the relevance of the ERO:

The Employment Regulation Order (ERO) fixes the statutory minimum rates of pay and other conditions of employment for workers employed in the contract cleaning industry.

The Complainant job title was listed as Cleaning Operative.

The Complainant prepared a dossier of records of events which had occurred on the third-party site in or around   26 August 2023.

 He observed a Colleague employed by that third party “perform his tasks dangerously “only for the complainant to be blamed by him.

What followed was a two-hour pursuance of him by this worker and a “malicious safety report “

The Complainant was suspended and awaiting the outcome of an investigation when he submitted the complaint to the WRC in February 2024. This period co incided with a parallel disciplinary process led by the Complainants employer, OCS.

He told the hearing that he had since been dismissed on July 11, 2024.

He came to hearing to report Penalisation against OCS, his employer.

The issue of jurisdiction is now central in the case.

Preliminary Issue

I asked the complainant to respond to the Respondent preliminary argument opened at hearing.

The Complainant availed of the affirmation. He submitted that OCS was his employer, and he never intended on raising his issues against Irish Rail, the third-party company. There was no one from Irish Rail at hearing.

He submitted that he had experienced and enduring penalisation in his employment. He confirmed that he was a permanent employee and was not an Agency worker.

He acknowledged that he had made a mistake in submitting his complaint under the Agency Act. He asked to be heard and forgiven for his mistake.

When I asked the complainant to clarify which of the pieces of legislation he had intended to invoke? he answered:

1 part time workers Act

2 fixed term workers Act

I asked if he could explore the narrative of the claim and cross match where I could establish a cross match for that intention? He was unable to do so.

He argued that his employer was acting in bad faith by delaying the WRC hearings.

Mr Collins submitted that he regretted not hiring a representative as it was wrong that the respondent could “wriggle out by a loophole “.

He recounted details of the subject of his claim, where he had been suspended on foot of a report wrongly made by an Irish Rail worker in or around September 2023.

 He was suspended which later led to his dismissal in July 2024.

He submitted that he had made a data access request in October 2024, when questioned on this competence, he replied that he had developed an enhanced knowledge of the law following his earlier workplace experiences.

 He had not been a member of a Union. He had raised the matter in late October 2023 with OCS management.

In cross examination, Mr Collins accepted that he had been suspended from the Irish Rail account in his capacity as an OCS employee. He understood this account was managed by OCS and not an Agency.

The Complainant clarified that he did not have any other cases live at WRC.

I asked the Respondent to submit details on documentation of employment which might allow me to reach a decision in the case. I also asked for the Service Level Agreement relied on as a Service Level Agreement.

I received the SLA and a very frail record of transition retained by the Respondent, which were shared with the Complainant for comment. This frail record was not captured by the complainant in his subsequent response to the WRC.  This was a very poor transitionary record of employment as over half the form went unpopulated.

On 9 July 2025, the complainant responded seeking a further elasticating of the law to fit the February 2024 claim within the Protected Disclosure Legislation. He did not engage on the SLA or employment documents received.

 Hello, I am writing my response to the supplementary submission to ADJ-00049983.

 I am requesting that my current complaint be amended from penalisation under the temporary agency workers act to the correct legislation, which would be Penalisation for making a protected disclosure under the Protected Disclosures Act 2014. The reason I am making this request at this late stage, is because my original complaint was made in February 2024. The respondent has since delayed for over fifteen months in outlining their case. They have ignored requests to outline their defense. During this time, instead of outlining a defense in a fair and timely manner, they applied for two postponements. This process of delaying without making any effort to outline a defense, is clearly an attempt to block the contents of my complaints from being heard. The respondent, when asked to give a reason for these delays, gave none. The respondent has a duty to outline their defense in a timely manner and fifteen months does not represent a timely manner. This fifteen-month delay from the time of my complaint to the time of the respondent’s response in May 2025 has had a direct causal relationship on me no longer having the time to withdraw this complaint and make a fresh complaint under the correct legislation. I do not believe that the respondent should be rewarded for using such tactics during the adjudication process. To allow the adjudication process to continue under the correct legislation where the adjudicator will have jurisdiction, will only punish the respondent if they have committed wrong doings at the workplace. They have after all been aware of this complaint for well over a year. On the other hand, if after the respondent has delayed the process by over fifteen months in a clear attempt to delay my case beyond the WRCs statute of limitations and this case is now dismissed this would not represent a process that promotes or maintains fair workplace relations in Ireland. It is on these grounds that I ask the adjudicator, without prejudice to either side, to allow the complaint to move forward under the correct legislation. Kind Regards, Michael

The Respondent operates a facilities Management company with offices in Ireland and Northern Ireland. It provides services in cleaning, security, aviation, catering and facilities management.

It was common case that the Respondent was notified of the instant claim on February 7, 2024.

On May 30, 2025, the Respondent opened a Preliminary Argument on jurisdiction in their written submission.

Preliminary argument:

The Respondent took over Mr Collins employment from ISS Facility Services following a transfer on 9 October 2023. He had been assigned to work at an Irish rail base for 18 hours per week, 7 pm to 3 am €13.38 per hour.

His service record commenced on 18 March 2008.

The Respondent submitted that the claim submitted in accordance with The Protection of Employees (Temporary Agency Work) Act, 2012 had no application to the circumstances of this case as the Respondent was not:

An Employment Agency

And

The Complainant was not an agency worker.

The Respondent outlined that they had been wrongly cited as the claim for penalisation was

 “Allegedly committed by an employer to whom he was hired out “

The Respondent was not a party to whom the complainant was hired out.

The Respondent requested a direction on jurisdiction. While respecting that the WRC claim form is not a statutory document,

“… However, the legislation on which a claim is taken has serious implications, for example, on an Adjudication Officers jurisdiction, onus of proof, the evidential burden, the type of evidence required to be addressed in such proceedings and the relief that can be ordered by the WRC”

The Respondent contended that there was no jurisdiction for this claim and as requested a direction at the outset and application of:

Minister for Finance v the Civil and Public Service Union [2006] IEHC 14 on whether a decision on a nett issue might resolve a dispute as a preliminary point.

The Respondent went on to cite Pearse Brannigan v The Equality Tribunal and County Louth VEC [2016] IESC 40

On a creature of statute living by statute and not being permitted to

“Enlarge the jurisdiction so vested in it……. It is bound by what jurisdiction it has and must act accordingly “

Killeen v Director of Public Prosecutions [1997] 3 IR 218

At hearing, the Respondent argued the case was misconceived and should be dismissed.

In seeking to scope out a potential for a way forward in this long running case I asked the Respondent if there was agreement to amend the Legislation in the case? This was refused.

The Parties were unwilling to engage in any informal discussions and Ms Mc Grath, in house Human Resources said the matter was in “an ongoing process “

The Respondent had adopted a policy on Intra service complaints but did not exhibit this.

Evidence of Steven Maynard (affirmation)

Mr Maynard was the Area Manager and confirmed that OCS had entered a Service Level Agreement with Irish Rail.

He was aware of the incident raised by the complainant.

In cross examination,

Mr Maynard confirmed that the complainant had transferred employment by TUPE Regulations. The Respondent was not an Agency.

In closing, the Respondent denied that they were seeking to avoid matters through a loophole and concluded that Brannigan applied.

I asked the Respondent why they had delayed in identifying that the Agency Act was an issue for the company?

The Respondent confirmed that the error in the Legislation relied on by the complainant was noted at the outset, but no action was taken.

I requested the SLA and a document on terms and conditions of employment within 7-days.

This was received as requested and forwarded to the complainant for comment. I have incorporated the complainant response above.

On 21 July, 2025, IBEC, once more forwarded a written response to the complainants 9 July comment. This was largely a repetition of earlier submissions bur refused to expand the legislation as requested by the complainant.

I have inserted this response to balance both parties’ comments.

The Respondent argues that the fundamental statements made in this claim cannot simply be changed through the Complainant merely requesting to amend the claim from penalisation under the Temporary Agency Workers Act to another legislation. 3.5 The Complainant appears to have accepted that the Respondent is not an employment agency, its business is not in Transportation & Defence, and he was not an agency worker and, therefore, the Temporary Agency Workers Act does not apply to the parties in this matter. 3.6 The Complainant’s revelation in this submission that the correct legislation…would be Penalisation for making a protected disclosure under the Protected Disclosures is a profound statement that has jurisdictional implications. This means that he is now abandoning his initial claim, and he now wishes to pursue a claim of penalisation for a protected disclosure under the Protected Disclosures Act. 3.7 An Adjudicator derives jurisdiction based on the legislation under which a claim is filed. It is not for the Complainant to gift jurisdiction to the Adjudicator.

This is a strained matter, but one requiring a decision at the Preliminary Argument level.

The claim came before the WRC on 2 February 2024. The WRC acknowledged the complaint as pertaining to the Protection of Employees (Temporary Agency Work) Act 2012, where the Employer was marked as

1. OCS One Complete Solution ltd

The Hirer for the purposes of the Act was listed as the Station Master from a different employment, Irish Rail.

The narrative of the complaint is critical in deciding jurisdiction:

“I was penalised or threatened with penalisation by an employer to whom I was hired out by an Employment Agency for exercising my rights under the Protection of Employees (Temporary Agency Work) Act 2012.”

The complaint form was served on the respondent some 5 days later.

Neither Party sought to amend or alter this form until I received the IBEC submission on behalf of the Respondent on the 30 May 2025.

My earlier attempt to secure a written submission prehearing in April 2024, went unheeded.

 The Protection of Employees (Temporary Agency Work) Act 2012 gave effect to Directive 2008 /104/ EC

In Labour Court Recommendation AWD 231 ISM Recruitment and Jan Brocki, the Court deemed the purpose of the Act

“Is to ensure that an agency worker is treated no less favourably than a comparable employee working as an employee for a hirer, in respect of those matters comprehended by the Act “

Section 2 of that Act describes an Agency Worker as:

“Agency worker “means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

An Employment Agency is described as:

“Employment agency “means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person.

Application of Act.

3.— This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer.

Having listened to both parties evidence and submissions at hearing and having studied the SLA presented post hearing , on request , I accept that the complainant was employed as a permanent part time worker since March 2008 under the ERO for contract cleaning ,but without being a member of a union , which may have enabled or prompted  his understanding of the preferential status of an ERO on wages ,over time , pay slips ,uniforms, sick pay scheme, death in service benefit , rosters , facilities on site , communication , bullying , grievance procedures , representative rights and disclosure of information on termination of clients contracts .

I also accept both parties’ positions when they agreed that the Complainant was not an Agency worker but rather is a worker on a managed service contract.

The Complainant does not have standing to progress a complaint under a piece of legislation that he himself contends is a mistake and a mismatch. There is no locus standi, at first glance.

The Respondent has directed that the case should be dismissed as misconceived.

For me, it is not that simple. I believe the circumstances of this case need deeper feedback to the parties and I can only ask that both parties reflect on this feedback, which is coming from someone who has heard what they said.

Placement as an Agency worker places the worker into the hirers area and the agency worker answers to the hirer on a day-to-day basis.

On a managed service contract, the employer manages the complainant, full stop. I have no way of establishing that ISS Facility Services was an employment agency, but I accept OCS was not.

This placed a high level of responsibility on this company to manage the complainant as best possible within the boundaries of employment legislation and in practising a duty of care towards him.

I found that the complainant believed that he was eligible to sign Irish Rail documents as an employee and this should not have occurred (example the hazard form for all employees, Oct 9, 2023). I would have liked to have seen the inter service complaints policy which may have served to de escalate events.

 I found blurred lines in how the complainant was operating on a day-to-day level at Irish Rail which go some way to understanding how he felt, for a short time at least, that he was an agency worker placed on a hirer site.

I can appreciate that OCS had just taken on the complainant’s employment in October 2023. However, by February – March 2024, this would have bedded down as demonstrated in the pattern of disciplinary action in train from December 2023.

On 7 February 2024, the Respondent was notified of the WRC claim at site level. It was two months later that IBEC came on record in the case. The Complainant sent many updates on his case to the WRC, all of which were shared. All were met by silence by the Respondent.

Nobody at site level or IBEC level ever altered course in this claim pre-June 2025. I was saddened to hear that there was an acknowledged site awareness of the error, but no intervention. I would have expected much more.

It is my opinion that this was a serious omission on behalf of a representative, who has a moral duty to their client their employee and the WRC to approach a case with “cards face up “not to wait and trial an ambush at the last minute which has had the nett effect of making matters worse.

The Complainant, on the other hand did not take due care in forming his complaint. I appreciate that he is a litigant in person and was welcomed in that vein. The WRC provides a very helpful guide to completing the complaints process. The guide emphasises due care should be taken in populating a complaint form.

The Complainant has made a mistake.

I took some time at hearing to ask the Parties to break to consider two cases from the Labour Court

Deaglan Healy and Erviva PWD 2020 on time limits

Marek Pawlisiak and Tesco EDA 1823   on correct employer in claim for reasonable accommodation

The Parties responded on application, but nothing resolved.

I am left to consider a Preliminary argument where I have already determined that the complainant does not hold locus standi at first glance.

I understand the complainant’s dissatisfaction on being left out in cold on his claim, but the law requires precision, accuracy and focus. However, I appreciate it also requires compassion.

I endeavoured to ask the Respondent in light of what had occurred whether they would consent to amend the pleadings on consent ?.

Unfortunately, the complainant could not point me to where he had intimated that he wished to progress under part time and or fixed term legislation in the narrative of the complaint. While the complainant was a part time worker, he was not a fixed term worker.

I also asked the parties if they wished to engage in informal discussions? but once more that was rejected. The request under data protection suggests an approaching Personal Injury case, which may be what Ms Mc Grath referred to a hearing.

I accept that the Complainant made a mistake in his submitted complaint before the WRC in February 2024. He broadened that mistake when he habitually sent in updates which were not canvassed by the WRC.

He was met by a respondent who remained silent for almost 1.5 years before raising the topic of the incorrect Act on the eve of the hearing.

The Respondent has sought a dismissal for a misconceived complaint. I will not dismiss the claim as there are two parties’ errors at play here.

I am always interested in the “By stander Intervention theory “which is power given to or taken by an observant and courageous person who spots the potential for harm and decides to intervene. It is a recognisable antidote to many ills of the employment arena.

This case is void of that person.

The Complainant has sought that I push the boundaries into a completely new piece of Legislation, that of Protected Disclosure Act, 2014 as an equitable remedy for the extended period of inertia by the Respondent.

The Respondent has said that would be prejudicial to the client.

Brannigan at the High Court, 2009, Mc Govern J, is helpful here, where a claim can be amended if it does not distort its meaning.

 (iii) That the EE1 Form, which had no statutory footing, and which was merely an administrative document, had as its purpose the setting out, in brief outline, of the nature of the complaint; as such, a complainant was not limited to its contents.

(iv) That as a result, by analogy with court proceedings, there was no reason why the claim as formulated could not be amended so long as the general nature of the complaint remained the same.

I accept that a complaint form is not a statutory form. I accept that should scope exist in the narrative, I may have a discretion to amend pleadings

 “So long as the general nature of the complaint remained the same “

I have considered both parties stated positions, I have read and re read the narrative on the complaint form, which is largely a log of a toxic work atmosphere and interpersonal conflict with a third-party employee.

I find that I lack the jurisdiction to alter the claim received by the WRC to the Protected Disclosure Legislation as that would stretch the boundaries of judicial activism beyond the at-risk rating in law.

I must conclude that it was open to the Complainant to seek to vary or alter his pleadings or indeed open a new complaint.

I would have preferred if the parties consented to an amended pleading, but this was not to be.

I find that the complainant does not have the locus standi to advance his complaint under the Protection of Employment (Temporary Agency Workers) Act 2012 and I find that I cannot grant him the remedy sought by him to alter course to the Protected Disclosure Act, 2014, as amended.

It is simply too late.

The narrative in the complaint form does not support such a radical change in direction and remedy.

The remedy sought would alter the general nature of the complaint. Brannigan applied.

I find for the Respondent in this Preliminary Issue, and I cannot take this case any further.

The claim is not well founded.

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.

Section 25 of the Protection of Employment (Temporary Agency Workers) Act 2012 requires that I make a decision in accordance with Schedule 2 of that Act.

The Complainant lacks locus standi to advance his complaint as he is not an Agency worker.

I find for the Respondent in this Preliminary Issue, and I cannot take this case any further.

The claim is not well founded.

Incorrect Legislation relied on