ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00058755
Parties:
| Complainant | Respondent |
Parties | Oksana Snihur | GXO Logistics Services Ireland Limited |
Representatives | Marius Marosan | Emma Twomey IBEC |
Complaint(s):
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-00071293-001 | 05/05/2025 |
Date of Adjudication Hearing: 16/01/2026 & reconvened 11/06/2026
Workplace Relations Commission Adjudication Officer: Brian Dalton
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.
This case was agreed as a test case for other complaints by other agency workers brought under the Protection of Employees (Temporary Agency Work) Act, 2021 against the same Respondent on the same facts. What this means if the complaints are appealed by either party this case would travel and by agreement applied to the other cases set out in correspondence between the parties and agreed.
The Respondent agreed that a test case was ran under Oksana Snihur in relation to the Protection of Employees (Temporary Agency Work) Act, 2012, to be applied to: Adj-00060292 Bodhan Snihur; Adj-00060021 Hali Ibrahim Aktas and Adj-00058727 Victor Donchenko.
On the same facts there is a related case brought under the Payment of Wages Act 1991 Adj-00053113 that will also apply to the named Complainants as a test case.
Background:
The Complainant states her claim as follows: The company proposed shift changes and offered a loyalty bonus for those of us that accepted the proposed change and stay in the company until January 2025. We even signed the agreement. In January the company refused to pay the bonus to the agency workers but paid it to the direct employees.
The Complainant’s contract with the company ended on the 28th of January 2025.
The Complainant stated that on the 9th of May 2024 the company held a meeting with all employees on site, both direct employees and agency workers. They were informed about changes that would be made to working hours, shifts, pay increase and a loyalty bonus payable to everyone that stayed with the company until January 2025. The managers addressing the meeting handed a written document for all employees to sign including agency employees.
The document had no exclusion clause, and it did not state that the conditions only applied to direct employees. The changes detailed in the letter were applied universally to all employees working on site including temporary agency personnel. Also, towards the end of the letter it is stated that the changes will also alter the contract of employment.
In January 2025, when the last aspect of the letter was due to be implemented, those that were agency workers were refused payment of the €1200 despite being given the document at the meeting held in May 2024. The retention payment, as it is described in the collective agreement, is part of wages to be paid as per the company agreement. Refusing the payment is a breach of Section 5 of the Act. In Section 1 of the Act, "wages" are defined as: "any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,", emphasis added. As the changes notified in written form were part of the contract of employment, everyone working on site should have had the same benefits. These rights are conferred by Section 6 of the Protection of Employees (Temporary Agency Work) Act, 2012, as it is detailed in the Interpretation part included in Section 2: “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".
The Complainant referred to Mulholland - v - QED Recruitment Ltd, [2015] IEHC 151, where the High Court mentioned: "A person seeking to rely on the protections offered by the Act must be able to establish that a contractual term , collective agreement, or some other entitlement or agreement is in place which they had been denied by virtue of being an agency worker."
The Respondent breached Section 5 of the Payment of Wages Act, 1991 by ignoring the provisions of the Protection of Employees (Temporary Agency Work) Act, 2012. It is important to note that this is not a misunderstanding on behalf of one employee, as there were several people at the meeting, many of them agency workers that worked with the impression that if they accepted the proposed changes and stayed with the company until the end of January 2025, they would receive the €1200 bonus payment. When they were refused, they sent a formal letter, signed by 19 agency workers, demanding payment as discussed at the meeting in May 2024.
The Respondent stated that the claims are spurious. The complaint made under Payment of Wages allege that the Respondent has “not paid me or has paid me less than the amount due to me” further stating “The company refused to pay the loyalty bonus for those remaining in the company until January 2025”. The Respondent refutes this claim its entirety and holds that this goodwill payment referred to was not properly payable to the Complainant. The Complainant was not employed by the Respondent at the time when a contractual change to employee’s shifts was made and in which a goodwill gesture would be paid upon acceptance and retention within the Respondents organisation until January 2025. This payment was subject to specific conditions: it applied solely to direct employees who accepted a contractual amendment to their terms of employment with the Respondent in June 2024 and who remained in continuous direct employment until January 2025. The Respondent maintains that the Complainant did not satisfy these criteria and were therefore not eligible to receive the goodwill payment.
As per the Protection of Employers (Temporary Agency Act) 2012 the pay which an agency worker is entitled to does not include all elements of the remuneration package which would apply to direct recruits. Pay to which an agency worker is basic pay. For the purpose of this Act, pay excludes sick pay, payments under any pension scheme and financial participation schemes. It excludes anything not listed in the definition of pay, such as bonus pay, maternity top-up, ex-gratia redundancy payments. Therefore, this payment was over and above basic which an agency worker does not have a right to. The Respondent asserts that it was explicitly communicated to all workers in May 2024, both directly employed and agency staff, at the time of the shift change announcement that the payment in question related solely to the acceptance of contractual changes by direct employees. |
Preliminary Matter
Time Limit
The Respondent stated that the claim before the Adjudicator was out of time as the change that took place in contract terms took place on or about June 2024 and the complaint was lodged with the Commission on the on the 16th of January 2025:
“The Respondent will submit evidence that the Complainant was employed by an employment agency at the time an agreement was reached between the Respondent and their direct employees in regard to individual employees accepting contractual change in June 2024. No issue or claim was raised during this period by the Complainant. 2.8 The Respondent submits that the Complainant in this instance cannot demonstrate reasonable cause for a delay in filing this claim to the WRC and on that basis respectfully submits that the Adjudication Officer assigned to hear this claim has no jurisdiction to do so.”
The Complainant stated that the breach is not when the terms was agreed to which was on or about May 2024, rather the date the bonus fell due for payment in January 2025, which was a loyalty bonus to continue working until that date to be eligible for payment. As the payment was not made and she had complied with the terms of the agreement, the Respondent is in breach of the Act and the claim is in time.
On the facts that the breach relates to the non-payment of the loyalty bonus in January 2025, I determine that the complaint is in time.
Two Claims same facts:
The Respondent raises an issue about bringing two complaints that are essentially being maintained on the same facts. This could lead to an absurd situation of double compensation if the claim was successful.
The Complainant has taken claims under Section 6 of the Payment of Wages Act,1991 and Section 25 of the Protection of Employees (Temporary Agency Work) Act 2012. The Respondent states that it is clear from the claim forms that the claims arise from the same set of facts. Both claims are based off the non-receival of the same payment in January 2025 of €1,200. The Complainant alleges he was entitled to this payment under both the Payment of Wages Act and the Protection of Employees (Temporary Agency Work) Act 2012. Nothing in these claims differentiates one from the other. In Henderson v Henderson (1843) 3 Hare 100 the rule developed which prevented duplication of proceedings and which provided there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same manner.
The Complainant can maintain two claims in this case; however, it is highly unlikely that the facts as detailed would attract double compensation if the two claims were deemed to be well founded. That arises from a public policy not to award double compensation on the same facts. However, there can be exceptions to this rule which was considered by the Court of Appeal in Culkin v Sligo County Council [2017] IECA 104. I determine that the Complainant can maintain both complaints.
Wrong Respondent Named?
The Adjudicator wrote to the parties after the first day of hearing:
I am currently reviewing this file and have the following matters that I need to be addressed:
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012.
Section 6 is the basis of the claim:
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.
In this case you might clarify who was liable for paying the Complainant as the Act provides at section 15 the following:
Duty of hirer to provide information to employment agency.
15.— (1) It shall be the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under this Act in relation to the agency worker.
(2) Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer of the agency worker to comply with this section, the hirer shall indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure.
I note the duties of the Agency and the Hirer in Employment Law Authors Maeve Regan and Ailbhe Murphy 2nd Ed 2017 the following:
[14.33]. Section 15 of the 2012 Act provides that the hirer shall provide the agency with all such information in the possession of the hirer, which the agency might reasonably require, to enable the agency to comply with its obligations under the Act.
The Guidance expands on this and provides that:
- (i)the hirer must provide the agency with up-to-date information on terms and conditions of employment; and
- (ii)the hirer must inform the employment agency of the correct rate of pay, annual leave entitlements and any other payment arrangements or allowances that an agency worker is entitled to under the 2012 Act.[53]
[14.34]. Notwithstanding this obligation on the hirer, the decision of the Labour Court in Team Obair v Costello[54] suggests that the agency cannot blindly rely on the information provided by the hirer and must take some steps to satisfy itself that the information provided by the hirer is in fact correct. This may be practically difficult, and little guidance is provided as to what steps the agency is expected to take in this regard. Nevertheless, s 15(2) of the 2012 Act provides that where proceedings in respect of a contravention of the 2012 Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer to provide correct information to the agency, the hirer shall indemnify the agency in respect of any loss incurred by the agency that is attributable to such failure.
With reference to section 25 of the Act I note in Schedule 2 the following
- A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 6, 11, 13(1), 14, 23 or 24 shall do one or more of the following, namely—
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer or hirer, as the case may be, to take a specified course of action (including reinstatement or reengagement of the employee or agency worker in circumstances where the employee or agency worker was dismissed by the employer or hirer), or
(c) require the employer or hirer, as the case may be, to pay to the employee or agency worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances but not exceeding 2 years’ remuneration in respect of the employee’s or agency worker’s employment.
As neither party addressed me on this matter at the previous hearing, the hearing is being reconvened to allow submissions on a preliminary legal issue about which entity the complaint should properly be brought against under the Protection of Employees (Temporary Agency Work) Act 2012. No findings of fact or law are being made at this stage. Each party is invited to make submissions, in writing before the reconvened hearing, on which Respondent is the correct entity and any legal considerations relevant to this issue.
The Complainant has brought the claim against the hirer, where the Complainant worked and not the employment agency who is the employer.
Section 2 of the 2012 Act as amended states:
“contract of employment” means
(a) a contract of service, or
(b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract),
The other relevant definitions are again in section 2 of the Act:
“employee” means a person who has entered into or works (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;
“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;
“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;
“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;
And section 2(4) defines who is liable to pay the agency worker:
(4) For the purposes of this Act, a 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 an individual in respect of work done by that individual shall be deemed to be the individual’s employer.
On the plain reading of this section the Employment Agency is liable to pay.
The Complainant argues that the arrangement was entered into directly between the Hirer and the Complainant and in those circumstances, it follows that the hirer is liable for the loyalty bonus or payment. The Payment of Wages Act defines wages as:
“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise.
It relies on the broader definition of employment contract in the Act as noted in Boyle [2018] IESC 52 the Chief Justice stated:
9.8 Likewise, the definition of “contract of employment” for the purposes of the 1991 Act clearly includes any person “who is liable to pay the wages” of the relevant person."
The Respondent stated it is not the employer. The Respondent submits that it acted solely as the hirer of the Complainant’s services and was neither the Complainant’s employer nor an employment agency within the meaning of the 2012 Act. For the purposes of providing clarity, the Respondent is not, nor have they ever been, an employment agency.
This complaint is brought under the Protection of Employees (Temporary Agency Work) Act 2012. The first question that must be asked has the right Respondent being named and on the plain reading of the Act the person who is liable to pay the Complainant is the Employment Agency and not the hirer pursuant to section 2(4) of the Act. As I have determined that the wrong Respondent has been named, I must determine that the complaint being brought against the Respondent is not well founded.
A secondary matter arises about the fact that the issue in dispute is a retention payment and whether or not that should have been applied to the Agency workers. The 2012 Act sates again at section 2:
“pay” means—
(a) basic pay, and
(b) any pay in excess of basic pay in respect of—
(i) shift work,
(ii) piece work,
(iii) overtime,
(iv) unsocial hours worked, or
(v) hours worked on a Sunday,
but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;
In turn that paragraph states the following:
The arrangements referred to in this paragraph shall be in conformity with Community legislation and shall be sufficiently precise and accessible to allow the sectors and firms concerned to identify and comply with their obligations. In particular, Member States shall specify, in application of Article 3(2), whether occupational social security schemes, including pension, sick pay or financial participation schemes are included in the basic working and employment conditions referred to in paragraph 1. Such arrangements shall also be without prejudice to agreements at national, regional, local or sectoral level that are no less favourable to workers.
There is no reference in the Act to state that a retention payment would be excluded and the facts show that the agency workers would have to change their shift pattern as well and could also leave. The retention payment is not a change per se in terms but an incentive or once of payment to stay up to a date when it would be paid.
Section 6 of the Act states:
Basic working and employment conditions of agency workers.
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.
(2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that—
(a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and
The Respondent relies on the following to state that it is excluded:
As outlined within the Protection of Employers (Temporary Agency Work) Act 2012 the pay which an agency worker is entitled to does not include all elements of the remuneration package which would apply to direct recruits. The act sets out that agency workers are entitled to receive the same “basic working and employment conditions” as those which he would have received if recruited directly by the hirer to do the same or similar work. One of these conditions relates to pay; however, the term is narrowly construed under the Act. Pay is defined as: Basic pay.
Any pay in excess of basic pay in respect of: • Shift work • Piece work • Overtime • Unsocial hours worked • Hours worked on a Sunday Pay expressly excludes: • Sick pay • Payments under any pension scheme • Financial participation schemes It implicitly excludes anything not listed in the definition of pay, such as: • Bonus pay • Maternity top-up • Ex-gratia redundancy payments
The Respondent holds that the payment paid to direct employees was a goodwill payment as part of a consultation process on contractual changes with employees. The Complainant was not employed with the Respondent and therefore the Respondent did not request them to accept a contractual change in Summer 2024 for which a payment would be received. It was the responsibility of the agency firm to determine whether any contractual amendments were required for their employees and, if so, to implement those changes. The Respondent had no involvement in this process, as the agency operates under a contract for services with the agency firm. It was therefore for the Complainant to raise any issues or discrepancies regarding their contractual terms with their employer, the agency, rather than the end-user company. The agency bore responsibility for compliance with statutory obligations, and any grievance should have been pursued through that contractual relationship.
It is not settled that anything not listed in the definition of pay such as Bonus Pay, Maternity top up or ex gratia payments are excluded where the Directive specifically states:
The arrangements referred to in this paragraph shall be in conformity with Community legislation and shall be sufficiently precise and accessible to allow the sectors and firms concerned to identify and comply with their obligations. In particular, Member States shall specify, in application of Article 3(2), whether occupational social security schemes, including pension, sick pay or financial participation schemes are included in the basic working and employment conditions referred to in paragraph 1
However, that is not a matter that is required to be determined as I have determined for the purpose of this complaint the wrong party has been named. Arising from that finding I must dismiss the complaint against the Respondent and determine that the complaint is not well founded.
Summary of Complainant’s Case:
In Mulholland - v - QED Recruitment Ltd, [2025] IEHC 151, the High Court demined that: "A person seeking to rely on the protections offered by the Act must be able to establish that a contractual term, collective agreement, or some other entitlement or agreement is in place which they had been denied by virtue of being an agency worker." The Respondent breached Section 5 of the Payment of Wages Act, 1991 by ignoring the provisions of the Protection of Employees (Temporary Agency Work) Act, 2012. It is important to note that this is not a misunderstanding on behalf of one employee, as there were several people at the meeting, many of them agency workers that worked with the impression that if they accepted the proposed changes and stay with the company until the end of January, they would receive the €1200. When they were refused, they sent a formal letter, signed by 19 agency workers, demanding payment as discussed at the meeting in May 2024. The Complainant was entitled to receive the €1200 after the end of January 2025, as the company changed the working conditions, working patterns and pay rates for everyone that worked on site. It is only logical that if all the other terms applied to everyone, so does the loyalty bonus, which is a "wage properly payable" to the complainants |
Summary of Respondent’s Case:
The loyalty bonus was only ever intended to be paid to employees of the company arising from a change to their terms and conditions. It was never meant to apply to agency staff working at that time. The Agency staff have not been treated less favourably to permanent staff as the payment was made as part of a collective process to change the terms and conditions of permanent employees. |
Findings and Conclusions:
See preliminary matters. As the wrong Respondent party has been named; the case is dismissed against the Respondent. On the same facts there is a related case brought under the Payment of Wages Act 1991 Adj-00053113 that will also apply to the named Complainants as a test case. The Act provides for the Agency to seek indemnity from the hirer where they have not been provided with the required information so that full payment can be made. I have not determined for the purpose of this Act if that retention payment was payable to this Complainant. I have decided that the claim for this payment should have been made against the Agency and not the hirer. I do deal with that question in the other decision if it was properly payable, as it is put to the Adjudicator by the Respondent in the related case to answer, if the retention payment was properly payable. The argument that the hirer entered into a new contract with the Complainant about the retention bonus to be paid on date in January 2025 has not been credibly argued for the purpose of this Act. An existing employment contract was in place with the Agency, and no compelling argument has been presented under this Act to challenge the Complainant’s status as an agency worker. As mentioned already section 15(2) of the Act provides for the following: Duty of hirer to provide information to employment agency. 15.— (1) It shall be the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under this Act in relation to the agency worker. (2) Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer of the agency worker to comply with this section, the hirer shall indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure. The alternative being argued is that the payment is properly payable under a different Act which is the Payment of Wages Act 1991 and that is dealt with under a different Adjudication case file. |
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.
This complaint is brought under the Protection of Employees (Temporary Agency Work) Act 2012. The first question that must be asked has the right Respondent being named and on the plain reading of the Act the person who is liable to pay the Complainant is the Employment Agency and not the hirer, pursuant to section 2(4) of the Act. As I have determined that the wrong Respondent has been named, who was the hirer and not the Agency, I must determine that the complaint being brought against the Respondent is not well founded, as liability for payment rests with the Agency and not the hirer pursuant to this Act. |
Dated: 30th June 2026
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Wrong Respondent |