QED Contracts Ltd (Represented by Mr Cathal McGreal B.L., Instructed by Ferrys, Solicitors) and DHL Express (Ireland) Ltd (Represented by Irish Business and Employers' Confederation) v Rachel Hickey (Represented by Dave Murphy)
| Jurisdiction | Ireland |
| Judgment Date | 27 October 2015 |
| Judgment citation (vLex) | [2015] 10 JIEC 2706 |
| Docket Number | FULL RECOMMENDATION (r-145893/150481-taw-14/SR) DETERMINATION NO. AWD1516 |
| Court | Labour Court (Ireland) |
Labour Court
FULL RECOMMENDATION
AWC/15/11
(r-145893/150481-taw-14/SR)
DETERMINATION NO. AWD1516
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
SECTION 25(2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012
1. An appeal against a Rights Commissioner's Decision no: r-145893/150481-taw-14/SR.
2. The Worker appealed the Rights Commissioner's Decision dated 21st July 2015 to the Labour Court in accordance with Section 25(2) of the Protection of Employees (Temporary Agency Work) Act 2012 on the 10th August 2015. The Court heard the appeal on the 7th October 2015. The following is the Determination of the Court:
This is an appeal by Ms Rachel Hickey against the decision of a Rights Commissioner in her claims against QED Contracts Limited and DHL Express (Ireland) Limited.
The claims were taken pursuant to the Protection of Employees (Temporary Agency Work) Act 2012. Ms Hickey was assigned by QED Contracts Limited to work under the direction and control of DHL Express (Ireland) Limited. She submitted complaints alleging a breach of Section 6 of the Act claiming that QED Contracts Limited did not pay her the correct rate of pay and that it penalised her contrary to Section 23 of the Act.
Furthermore, the Complainant submitted complaints against DHL Express (Ireland) Limited alleging breaches of Section 1, 14 and 24 of the Act.
The Rights Commissioner did not uphold her complaints and found that all were not well-founded.
For ease of reference the parties are now given the same designation as they had at first named instance. Hence Ms Rachel Hickey is described as “the Complainant”, QED Contracts Limited is described as “the first named Respondent” and DHL Express (Ireland) Limited will be described as “the Hirer” and/or “the second named Respondent” as appropriate.
The Complainant commenced employment with the first named Respondent on 16 th February 2010.
The first named Respondent is an Employment Agency within the meaning of the Act. At all times material to this claim the Complainant was assigned to work as an Operations Clerk under the direction and control of the Hirer. The Hirer carries on a courier business situated at Pearse Street and previously at Sand with Street, Dublin 2.
The Complainant is an agency worker within the meaning of the Act and assigned to the Hirer on 16 th September 2010.
The Complainant claimed that for the period from December 2012 to January 2014 she was paid less that the rate paid to comparable employees of the Hirer. The Complainant was paid a rate of €9.50 per hour.
She claimed that comparable employees of the Hirer were paid €9.88 per hour. She stated that her rate was increased to €9.88 circa January 25 th but she believed that direct employees had received a 2% increase in December 2013 and a further 2% on 1 st January 2014 or alternatively a 4% increase on 1 st January 2014.
The first named Respondent stated that the Complainant was initially paid €10.00 per hour; this was reduced to €9.50 per hour in October 2012 to align the rate with that paid to the direct employees of the Hirer doing similar work.
When the Hirer increased the rate paid to its employees on 1 st January 2014 to €9.88 per hour, the Complainant's rate was similarly increased. Because the Complainant was on holidays in January the rate of €9.88 per hour was not paid from the due date but this was subsequently rectified and the Complainant suffered no loss.
The Complainant also claimed that she was denied payment of an output performance bonus which applied to direct employees of the Hirer, paid quarterly at a rate of 1% of salary based on certain KPI's being met.
She maintained that this payment complies with the full definition of “piece work” which is a component of pay as defined by the Act. It also complies she believes with the definition of “wages” and “normal weekly remuneration” under the Payment of Wages and Redundancy Legislation respectively.
The first named Respondent stated that the Hirer did not operate a piece rate system and that the Complainant was mistaken in that regard.
It stated that the Hirer had in place a Staff Incentive Scheme whereby a payment was made based on the overall performance of the Company and was not contractual. This payment was not “pay” as defined by the Act and it referred to SI 287/1977 – Unfair Dismissals Regulations 1977 for what it regarded as providing a definition of what piece rates are understood to mean.
The Complainant alleged that the first named Respondent penalised her after she informed them by email dated 19 th May 2014 that she intended to make complaints against it under the Act. At the same time she sent a further email informing the first named Respondent that she would be returning to work that day following a three month period of illness and she attached two doctors' certificates.
She said that on her return she received an email from the first named Respondent informing her that she was not rostered to work with the Hirer on that day and requested a “fitness to return to work certificate” from her. On the following day when she reported for work she was suspended without pay and she has not been allowed to return to work since.
The Complainant submitted that she had provided numerous fitness to return to work certificates, but the first named Respondent had refused to accept them on the basis that they were “highly qualified”.
The Complainant told the Court that she had not received any policies or procedures from the first named Respondent and consequently submitted that it could not rely on such policies/procedures. She submitted that the actions of the first named Respondent were an immediate reaction to her informing them of her intention to make complaints under the Act and she sought reinstatement and compensation for the wrong-doing.
The first named Respondent denied the allegation of penalisation and submitted that the Complainant's claim was misconceived. It held that there was no ‘nexus’ or connection between the account given by her and any entitlement under the Act.
It held that the Complainant had no entitlement to return to work on 19 th May 2014 without giving prior notice of her intention to return after a period of over three months absence.
She was not certified to be in work, she was not on the roster and the first named Respondent could not accept a qualified fitness certificate due to its health and safety responsibilities to both the Complainant and those with whom she worked. Management of the second named Respondent did not in fact realise that she had returned to work until the first named Respondent notified them.
It submitted that the only reasonable and practicable response to the circumstances was to take the action it took and instruct her not to turn up for work at the Hirer's premises and instead to attend a meeting on Friday 23 rd May 2014 to review the situation.
When the Complainant failed to comply with that request and insisted on turning up for work at the Hirer's premises, without a valid fitness to work certificate on the following day (20 th May), she was asked to leave.
The first named Respondent pointed out to the Complainant that the letter from her GP which she handed in that day, was still qualified in nature and was not acceptable as a fitness to work certificate and clarified that this letter contradicted the previous certificate she furnished to Managementby stating that she was in fact fit to work on May 19 th 2014.
The Complainant refused to leave and became disruptive. The first named Respondent prepared a handwritten letter advising her that she was being suspended and requesting that she leave the premises.
The Complainant alleged that the second named Respondent had failed to inform her of any vacant positions of employment contrary to Section 11 of the Act. She said that vacancies were not advertised on Noticeboards and she was only given email access in February 2014. Her belief that vacancies existed was based on seeing congratulatory notices regarding staff appointments on Noticeboards.
The second named Respondent disputed the Complainant's contention and stated that she was informed of any and all vacancies in the same way as all directly employed employees. Vacancies were advertised internally via the Company Noticeboard. It contended that if it were the case that no positions were advertised in this manner then both direct employees and agency staff would be denied job opportunities in the Company.
The Complainant submitted that the second named Respondent was in breach of Section 14 of the Act in that it did not allow her access to training courses that were available to employees of the Hirer. She specifically complained that she was not given access toan online educational portal available for DHL staff.
The second named Respondent denied the Complainant's allegation and contended that “training facilities” is not encompassed by the term “collective facility” as defined by Section 14 of the Act. Notwithstanding this, the Company submitted that at no time was the Complainant treated any less favourably than a direct employee in relation to access to training. Access to training for all direct employees is based on the needs of the business and the appropriateness of the training to...
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