Health Service Executive (Represented by Arthur Cox Solicitors) v Patrick Neville (Represented by James Doran, B.L., Instructed by Butler Monk, Solicitors)
Labour Court (Ireland)
1. Appeal of Rights Commissioner / Adjudication Officer Decision No(S) R-159790-TAW- 15, R-160110-UD- 15, R-159753-TU-15.
2. The Complainant appealed the Decision of the Rights Commissioner / Adjudication Officer to the Labour Court on the 12 April 2017. A Labour Court hearing took place on 23 November 2017. The following is the Court's Determination:
Mr Patrick 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.
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.
The Adjudication Officer issued his Decision on 13 September 2016 (reference numbers Protection of Employee's (Temporary Agency Workers) Act, 2012 R-159790-taw-15, Unfair Dismissals Act 1997 – 2007 r-160110-ud-15 and EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 r-159753-tu-15.) The Complainant appealed against that Decision to this Court on 19 October 2016. The cases came on for hearing before this Court on the 23 November 2017.
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 the Managing Director of that Company.
The main customer of Matrix Resources Ltd was the Primary Care Reimbursement Service (PCRS) of the HSE (the Respondent). The Complainant managed all staff assigned by the Agency to work in that service.
In 2005 the Respondent engaged Matrix 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.
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.
The Complainant, at all times, oversaw the recruitment, assignment and administration of the contractual and statutory entitlements of those agency workers.
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.
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 assigned by Matrix Resources Limited to PCRS into direct employees. He stated that the process would commence shortly in accordance with HSE procedures and that each agency worker would be invited to participate in a competition for Clerical Officer posts with the Respondent.
The letter anticipated that the conversion process would take up to six weeks and noted that when it was completed the Respondent would no longer require the services of Matrix Resources Limited.
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