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Agency Worker Not Entitled to Representation by Non-Agency Colleague

While Agency workers have a right in law to the same terms and conditions as Non-Agency staff the Labour Court has restated the limits of this right in the recent decision of CPL Solutions Ltd v. Mr Andrezej Wrodarczyk AWD203.   

Facts: The Complainant was employed by CPL Limited and assigned to a Tesco Ireland Distribution Centre in 2018. He ran into some difficulties in work and was subject to a disciplinary investigation in August 2018. He was offered the opportunity have a colleague accompany him to the investigation meeting as per CPL’s disciplinary policy.  CPL limited his choice of colleagues to other CPL employees whereas the Complainant wanted to bring a Tesco Ireland colleague to the meeting. CPL would not allow this and the investigation proceeded without the Complainant being accompanied.

Section 6 Protection of Employees (Temporary Agency Work) Act 2012 (“2012 Act”) requires that an Agency worker receive the same basic working conditions as a direct hire. The Complainant brought a case to the Workplace Relations Commission alleging that CPL’s failure to let him bring a Tesco Ireland colleague to the disciplinary meeting violated Section 6 of the 2012 Act. The WRC Adjudication Officer found in his favour by reference to the wording in S.I. 146/2000 and awarded him €2500. CPL appealed this decision to the Labour Court.

Decision: The Labour Court which found that the Section 6 does not encompass “an entitlement to the same disciplinary procedure” as direct hires and that “right of representation is not one of the basic working and employment conditions of employment as defined” by the 2012 Act. Therefore the wording in S.I.146/2000 was irrelevant.  As such the appeal was successful and the WRC’s decision was overturned.

Takeaway for Employers: While the Protection of Employees (Temporary Agency Work) Act 2012 requires agency workers to be treated the same as direct hires, this requirement is limited to areas such as pay, working time, rest periods and breaks, night work, overtime, annual leave and public holidays. It does not include areas outside of this list, such as disciplinary procedures.

Link: https://www.workplacerelations.ie/en/cases/2020/october/awd203.html

Author – David Murphy & Anne O’Connell

30th November 2020

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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