Occipital Ltd (Represented by Irish Business Employers' Confederation) v Muhammad Ismail (Represented by Mr Dermot Sheehan B.L. Instructed by O'Hanrahan & Company, Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 09 October 2018
• Judgment citation (vLex): [2018] 10 JIEC 0901
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.AWD185 ADJ-00011729 CA-00015586-001
• Date: 09 October 2018
• Court: Labour Court (Ireland)

Labour Court

FULL RECOMMENDATION

AWC/18/3

DETERMINATION NO.AWD185

ADJ-00011729 CA-00015586-001

PARTIES:

Occipital Limited (Represented by Irish Business Employers' Confederation)

and

Muhammad Ismail (Represented by Mr Dermot Sheehan B.L. Instructed by O'Hanrahan & Company, Solicitors)

DIVISION:

Chairman: Mr Foley

Employer Member: Ms Connolly

Worker Member: Mr Hall

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

SUBJECT:

1 1. Appeal of Adjudication Officer's Decision No: ADJ-00011729.

BACKGROUND:

2 2. The complainant appealed the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 4 October 2018. The following is the Court's Determination:

DETERMINATION:

3 This matter comes before the Court as an appeal by Muhammad Ismail (the Appellant) of a decision made by an Adjudication Officer in his complaint against his former employer, Occipital Limited (the Respondent made under the Protection of Employees (Temporary Agency Work) Act, 2012.

4 The Adjudication Officer, in a decision made on 26 ^th June 2018 set aside the complaint of the Appellant.

5 Preliminary matter

6 The Respondent submitted that a preliminary matter arose in the within appeal. The Respondent submitted that the Appellant had not, at the material time, been an agency worker within the meaning of the Act. The Court decided to consider this matter as a preliminary matter on the basis that the Court's decision on this matter could be determinative of the appeal in its entirety.

7 The Appellant's complaint was made to the Workplace Relations Commission on 3 ^rd November 2017. Consequently, the cognisable period for the within complaint is 4 ^th May 2017 to 3 ^rd November 2017. The Appellant was, at the material time, employed by the Respondent and located at a large site of a client of the Respondent to provide hygiene services as a supervisor.

8 The Act provides protection for persons who are agency workers within the meaning of the Act.

9 The Act at Section 2 defines an agency worker as follows:

• “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;

10 The Court has heard evidence that the Appellant, at the material time, was working under a contract of employment signed by both parties on 3 ^rd March 2016. That contract made provision at paragraph 7 as follows:

• 7. Reporting to / Instructions

You shall report to your Manager / Supervisor or such other colleague as the...