Staffline Recruitment Ltd (Represented by Irish Business Employers' Confederation) v John Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 18 September 2018
• Judgment citation (vLex): [2018] 9 JIEC 1801
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.AWD184 ADJ-00005481 CA-00007464-001
• Date: 18 September 2018
• Court: Labour Court (Ireland)

Labour Court

FULL RECOMMENDATION

AWC/18/2

DETERMINATION NO.AWD184

ADJ-00005481 CA-00007464-001

PARTIES:

Staffline Recruitment Ltd (Represented by Irish Business Employers' Confederation)

and

John Fitzgerald

DIVISION:

Chairman: Ms Jenkinson

Employer Member: Ms Doyle

Worker Member: Ms Tanham

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

SUBJECT:

1 1. Appeal of Adjudication Officer's Decision No: ADJ-00005481.

BACKGROUND:

2 2. The Complainant appealed the the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 5 September 2018. The following is the Court's Determination:-

DETERMINATION:

3 This is an appeal by Mr. John Fitzgerald against the Decision of an Adjudication Officer in a claim against his employer, Staffline Recruitment Limited, under the Protection of Employees (Temporary Agency Work) Act 2012 (“the Act”). The Adjudication Officer found that the claim was not well-founded.

4 For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. John Fitzgerald will be referred to as “the Complainant” and Staffline Recruitment Limited will be referred to as “the Respondent”.

5 The Complainant referred his complaint to the Workplace Relations Commission on 6 ^th October 2016.

6 The Respondent is an employment agency. As part of its business it supplies agency workers to Green Isle Foods, Portumna (hereafter “the Hirer”). The Complainant commenced employment as an agency worker with the Respondent on 20 ^th April 2014 as an Engineer and was assigned to the Hirer.

7 The Complainant alleged that the Respondent did not comply with the Act, as he did not receive the same basic working and employment conditions as a direct hire employee with regards to “pay”.

8 The Respondent submitted that the Complainant was issued with a permanent contract on 24th October 2014 and that this contract was in compliance with Section 6(2) of the Act, also known as “the Swedish Derogation”.

9 The Respondent referred the Court to Clauses 2.2, 7.2 and 7.3 of the Complainant's contract of employment which it submitted fulfilled the terms of the derogation contained in Section 6(2) of the Act.

10 • Clause 2.2

11 This Agreement and all relevant Assignment Details Forms constitute a permanent contract of employment. During the currency of this Agreement and any such Assignment Details Form, you shall have no entitlement to the rights conferred by Regulation 6 of the Regulations insofar as those rights relate to “pay”. This Agreement and any Assignment Details Forms do not affect any other rights and entitlements you may benefit from under the Agency Workers Regulations”

12 Clause 7.2

13 Subject to the Company's right to terminate this Agreement on notice under clause 13, from 16 May 2012 when you are not carrying out an assignment but are...