Health Service Ececutive (Represented by Arthur Cox) v Julie Neville (Represented by Butler Monk Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 09 February 2018
• Judgment citation (vLex): [2018] 2 JIEC 0902
• Date: 09 February 2018
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.AWD183 r-159787-taw-15
• Court: Labour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

AWC/17/2

DETERMINATION NO.AWD183

r-159787-taw-15

PARTIES:

Health Service Ececutive (Represented by Arthur Cox)

and

Julie Neville (Represented by Butler Monk Solicitors)

DIVISION:

Chairman: Mr Hayes

Employer Member: Mr Murphy

Worker Member: Mr Shanahan

SECTION 25 (2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012

SUBJECT:

1 1. Appeal of Rights Commissioner/Adjudication Officer Decision Nos. R-160113-UD- 15, R-159787-TAW-15 and R-159756-TU-15.

BACKGROUND:

2 2. The Complainant appealed the Decisions of the Rights Commissioner / Adjudication Officer to the Labour Court. A Labour Court hearing took place on 23 November 2017. The following is the Court's Determination:-

DETERMINATION:

3 Ms Julie Neville (the Complainant) submitted three complaints to the Workplace Relations Commission under the Protection of Employee's (Temporary Agency Workers) Act, 2012, the Unfair Dismissals Act 1997 – 2007 and the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003.

4 The Adjudication Officer decided that 1) no transfer of undertakings took place, 2) the complaint under the Employee's (Temporary Agency Workers) Act 2012 was misconceived and 3) the Complainant did not have locus standi to bring a complaint under the Unfair Dismissals Act 1997 – 2007.

5 A correcting order was issued and the Complainant appealed against those Decisions to this Court on 19 October 2016. The cases came on for hearing before this Court on the 23rd November 2017.

Background

6 The Complainant was at all material times an employee of Matrix Resources Limited an employment agency within the meaning of the Employment Agency Act 1971. The Complainant was also a Director of that Company.

7 The main customer of Matrix Resources Limited was the Primary Care Reimbursement Service (PCRS) of the HSE (the Respondent). The Complainant administered and or managed all staff assigned by the Agency to work in that service.

8 In 2005 the Respondent engaged Matrix Resources Limited as an employment agency for the supply of agency workers to meet its staffing needs. Initially it provided seasonal agency workers to the Respondent. In 2007 it entered a further agreement with the Respondent for the provision of a significantly larger number of agency workers to meet its day-to-day business needs.

9 Over the following years the number of agency workers Matrix Resources Limited supplied to the Respondent progressively increased as a result of the impact the employment embargo imposed on it by the State.

10 The Complainant, through the agency, oversaw the recruitment, assignment and administration of the contractual and statutory entitlements of those agency workers.

11 In 2015 the Government relaxed the employment embargo on the recruitment of staff in the public sector. At the same time the HSE published its National Service Plan 2015 which had, as one of its objectives, the reduction of its reliance of agency staff.

12 On 9 March 2015 Mr David Moore, Head of Corporate Services of PCRS wrote to Matrix Resources Limited stating that the Respondent was seeking to implement the policy objectives outlined in the 2015 Plan having specific regard to the reduction in its reliance on agency staff. In the letter, he stated that the relaxation of the employment embargo would allow for the conversion of existing agency staff supplied by Matrix Resources Limited into direct employees. He stated that the process would take place in accordance with HSE procedures and that each agency worker would be invited to participate in a competition for Clerical Officer posts.

13 The letter anticipated that the conversion process would take up to six weeks and noted that after it was completed the Respondent would no longer require the services of Matrix Resources Limited.

14 The Complainant took the view that as the Respondent intended engaging in a “conversion process” it amounted to a transfer of undertakings within the meaning of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulations).

15 The conversion process was given effect as set out in Mr Moore's...