EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Eimear Musgrave UD1630/2012
against
Paypal Europe Services Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. F. Moloney
Mr. F. Keoghan
heard this case in Dublin on 27 January 2014
Representation:
_______________
Claimant(s):
Mr. Peter Connolly, Peter Connolly, Solicitors,
6 Capel Street, (Opposite Nealons Pub), Dublin 1
Respondent(s):
Mr. Alan Haugh BL instructed by
Mason Hayes & Curran, Solicitors,
South Bank House,
Barrow Street,
Dublin 4
The determination of the Tribunal was as follows:-
An unfair dismissal claim was brought to the Tribunal in respect of an employment which allegedly commenced on 7 June 2011 and ended on 23 June 2012.
The respondent’s position from prior to the Tribunal hearing was that the claimant had been employed by the respondent as a talent acquisition controller under a contract of employment from 1 August 2011 to 16 May 2012. It was submitted on behalf of the respondent that the claimant did not have the requisite twelve months’ continuous service with the respondent to make a complaint under unfair dismissals legislation. (It was also contended by the respondent that the termination of the claimant’s employment contract had been procedurally and substantively fair.)
At the commencement of the Tribunal hearing it was stated that from 7 June 2011 to 31 July 2011 the claimant had had a role with an agency for the respondent and had been paid through the agency. After signing a 1 August 2011 employee contract with the respondent, the claimant had been paid by the respondent. The respondent’s package had commenced then. The dismissal was 16 May 2012. The claimant was paid for four weeks in lieu of notice. The respondent’s position was that the claimant’s service had been from 1 August 2011 from 15 June 2012.
The claimant’s representative referred the Tribunal to Section 13 of the Unfair Dismissals (Amendment) Act, 1993, as authority for the proposition that the claimant’s employment had been continuous throughout.
The respondent’s representative argued that the claimant’s representative was wrong, that the claimant had not been an agency worker at time of dismissal and that continuity could not be shown.
The Tribunal gave both sides an opportunity to send written submissions.
Determination:
The Tribunal has carefully considered the matters raised at the hearing dated the 27th of January 2014 and in addition has had an opportunity to review the helpful legal submissions presented by both parties in the aftermath of the said hearing date.
The matter comes before the Tribunal on foot of a Workplace Relations Complaint Form which was received by the Tribunal on the 6th of November 2012 and wherein the Applicant claims she was unfairly dismissed on or about the 14th of June 2014.
The Tribunal has been asked to consider its jurisdiction to hear this case in circumstances where, the respondent company says, the requisite 52 weeks’ service has not accrued to the claimant. In essence, the respondent makes the case that the claimant came to be employed directly by it from the 1st of August 2011 on foot of a letter of offer dated the 29th of July 2011 wherein a position is offered to commence on August 1st and all other particulars of the contract of employment are attached in the normal way. If the Tribunal agreed with the respondent’s position then the claimant’s service would amount to 46 weeks, 6 weeks shy of the 52 week requirement.
The claimant has asked the Tribunal to include a period of time amounting to circa 7 weeks preceding the 1st of August 2011 as being reckonable service.
In making this case, the claimant has invited the Tribunal to consider the contents of a contractual arrangement entered into by the claimant and a third party (GX). This document outlines the terms and conditions of an employment relationship entered into by the claimant as employee and GX as employer wherein the claimant would be placed with a “client” for the purpose of the supply of a particular service. There can be no doubt, from a perusal of this document, that the “client” is intended to be the respondent in these proceedings.
The Tribunal has considered this agreement and finds that the only parties to this contract are the claimant and GX and that the mention of the respondent in the opening paragraph is confusing and unfortunate but in no way takes away from the clear intention that this is an agency company placing its employee with an end user and that, for the duration of this contract, the only party that could be considered the employer is the company known herein as GX.
The Tribunal does not accept that this is a tri-party agreement and that the “client” and GX are somehow co-employers – a structure unknown to this Tribunal.
Some suggestion was made at the oral hearing that the respondent and GX might be one and the same entity which notion was rejected by the witness appearing for and on behalf of GX- brought, it is noted, by the respondent. On balance, the Tribunal has been shown nothing and heard nothing that lends credence to the contention that these two entities are anything other than separate and apart and that GX simply provides a service to the respondent company from time to time when agency workers are required by the respondent company.
Subsequently, and at a date unknown, it appears that the claimant and the respondent came to an agreement whereby the claimant would commence in a permanent full-time position with the respondent company commencing on the 1st of August 2011. The details of the terms and conditions of the proposed employment were detailed to the claimant under cover of a letter dated the 29th of July 2011.
The Tribunal has been asked to consider Paragraph 1 of the said contract of employment as somehow providing for the possibility of allowing the service preceding the commencement of the new employment as reckonable service. The Tribunal cannot accept this interpretation in circumstances where the mere presence of an agency worker/employee on the respondent’s site at the behest of an external employer cannot create this unintended outcome. At no time up to the 1st of August 2011 was the claimant employed by any party other than GX who would have been vested with the power to move the claimant to an alternative company should the need have arisen.
The Tribunal was asked to consider Section 13 of the Unfair Dismissals (Amendment), 1993, and its application in this situation and, having considered the points put forward by the parties, the Tribunal finds this section has no applicability and that the Section clearly envisages a scenario whereby a claimant dismissed from a workplace and whose employment has been contractually governed by an employment agency can have a cause of action under the unfair dismissal legislation against the workplace employer end user.
On balance, therefore, the Tribunal finds that the claimant has only 46 weeks of service with her employer, the respondent herein, and has no entitlement to include a period of time preceding the commencement of the 46 weeks as different contracts of employment and different distinct employers as recognised by the Tribunal before and after the 1st of August 2011.
Therefore, the Tribunal has no jurisdiction to hear this case. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)