EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Adam Banasiak Appellant UD6/2013
against the recommendation of the Rights Commissioner in the case of:
Adam Banasiak Appellant
MCR Personnel Limited Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr W. Power
heard this appeal at Dublin on 7th March 2014
Representation:
____________
Appellant(s):
71 Ballybough Road, Fairview, Dublin 3
Respondent(s):
Warren Parkes, Solicitors, Suite 317, The Capel Building,
Mary's Abbey, Dublin 7
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employee (the appellant) appealing against the recommendation of the Rights Commissioner reference number r-126030-ud-12/EH dated 18 December 2012.
Respondent’s Case
The above named respondent maintained that the appeal herein should be against the end user of the appellant’s services as provided in section 13 of the Unfair Dismissals Act. The above named respondent is an employment agency and not the appellant’s employer. The appellant was employed as a security guard by a sub-contractor who undertook work on behalf of the above named respondent.
Appellant’s case
The appellant believed that the named respondent was his employer.
The appellant commenced work on the 1 May 2011 and he was dismissed on the 28 August 2012.
Determination
Section 13 of the Unfair Dismissals (Amendment) Act, 1993 provides:
“Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement –
(a) The individual shall be deemed to be an employee employed by the third person under a contract of employment,
(b) If the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and
(c) Any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.
The evidence before the Tribunal was that the respondent named herein was an employment agency. The appellant was performing his work for a third party. Accordingly the Tribunal in applying the above section 13 dismisses the appeal under the Unfair Dismissals Acts, 1977 to 2007 against the respondent named herein. The Tribunal upholds the recommendation of the Rights Commissioner and the appeal fails
.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)