The High Court has dismissed an agency truck driver’s appeal against a Labour Court decision rejecting his complaint about pay and employment conditions at Greenstar Limited, the company where he was assigned to work.
Patrick Mulholland brought the complaint against QED Recruitment Limited under the Protection of Employees (Temporary Agency Workers) Act 2012. He said directly employed drivers doing comparable work received higher pay, more favourable overtime arrangements and a daily meal allowance. His complaint was rejected by a Rights Commissioner in May 2013. The Labour Court upheld that decision in July 2014, finding he had not shown that the conditions he claimed were established by an enactment, collective agreement or arrangement applying generally to the hirer’s employees or a class of employees.
On appeal, Mulholland argued that the Labour Court had effectively required universal application rather than general application, imposed too high an evidential standard and wrongly left the burden of proof on him. He relied on evidence from one directly employed driver, two SIPTU officials and pay slips from another employee. The Labour Court had excluded the pay slips as inadmissible.
QED Recruitment argued that evidence of one comparator was not enough to establish a generally applicable employment term. It also said the Labour Court had offered Mulholland the opportunity to seek a summons for a member of the hirer’s management who could give evidence about pay structures, but that option was not pursued.
Kearns P. rejected the appeal grounds. The court said Mulholland had failed even on a prima facie basis to show that a generally applicable arrangement existed, and attributed that failure to how he chose to present his case rather than an error by the Labour Court. It found no evidence that the Labour Court had imposed an excessively high standard of proof, and accepted its decision to exclude the pay slips concerning an employee who did not attend to give evidence.
The court also held that the 2012 Act contained no provision for shifting the burden of proof of the kind found in employment equality legislation. In a case relied on by Mulholland, the general arrangement had already been established before the burden shifted; the court found that had not happened here.
The appeal was dismissed. The High Court did not determine that the disputed higher pay or other conditions applied generally; it concluded that Mulholland had not established such an arrangement on the evidence presented.