ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000385

Complaints for Resolution:

Date of Adjudication Hearing: 19/02/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, Section 6 of the Payment of Wages Act 1991, and Section 11 of the Minimum Notice and Terms of Employment Act, 1973 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The Complainant has lodged a claim for Unfair Dismissal and Minimum Notice. He withdrew the complaint on Payment of Wages at the hearing.

The complainant commenced work as a Lorry Driver at the respondent company (Employer 1) in August 2012. The respondent is a registered employment Agency. They placed the complainant to work at Employer no 2 as a driver of waste management products from the outset.

The complainant shared the care of his young family with his wife and organised his shifts around his family and his secondary employment as a Chimney Sweep .He had a seasonal variation in his hours:

October to April:     Every Sunday and one other day per week.

April to September   Every Sunday and three other days per week.

These hours were understood by the complainant to be custom and practice.

The Complainant worked without incident until September 1^st 2015, when he had some negative experiences whilst out on a new run. He was accused of delivering the Waste Management Products to the wrong place, which he attributed to unclear instruction and direction. This caused some hostility between him and a fellow worker, MW. Where the complainant was verbally threatened by MW.

On or around the 3^rd September,2015 the complainant received a phone call from Mr C from the Agency to inform him that he was being suspended pending an investigation into the incidents  referred to on the new run . He was requested to provide a statement. He submitted his statement.

The Complainant was invited to the Agency Office three weeks later where, following a tri partite meeting between Mr C, Manager at the Agency , the Shop Steward, D.L and the complainant , a verbal warning was placed on his file . He was requested to sign this verbal warning, but refused as the order was post dated. He believed that he had been wronged.

Mr C instructed the complainant to return to work but to contact an alternative manager at employment (no 2) to obtain his roster. The complainant attended a meeting with the Transport Managers at Employment No 2 and was informed that his shifts would now be altered to 4 shifts weekly inclusive of each Friday and Saturday. The Complainant sought to negotiate shifts to meet his home requirements but was not heard. Instead he was informed by the Transport Managers that the decision was effectively out of their hands and imposed by a new manager at Employer No 2.

The Complainant was invited to attend a meeting at the agency where the proposed changes were again outlined coupled with a confirmation that his previous role in commercial waste would now be replaced by domestic waste. The complainant understood that he had little choice as he was strongly encouraged to accept the changes or be given his P45. The Complainant offered to work on the following Saturday and every second Friday. He did not have guaranteed availability during the week day cycle.

When no agreement followed, the complainant sought a redundancy payment, but this was refused him. He was told to leave. He received his P45 two weeks later. The Complainant contended that there was a lack of due process or Fair procedures in the way he was treated. He had an excellent relationship with both Employer 1 and 2 and a common understanding existed on the structuring of his shifts, yet, He was denied adequate representation or the protection of the code of practice on grievance and disciplinary procedures in accordance with S.I.146/2000.

The complainant understands the provisions of Section 13 of the Unfair Dismissals (Amendment) Act, 1993 but contended that he was dismissed by an Agent of Employer No 1, the Agency and not Employer No 2 .Therefore, the claim is directed at Employer No 1. He commenced on social welfare payments in December  and  gave evidence on loss and mitigation .

Respondent’s Submission and Presentation:

The Respondent refuted all claims against Employer No 1, the registered Employment Agency.

The respondent contended that a dismissal had not occurred in this case as the complainant had de facto resigned through not making himself available for work. The Complainant has sought to reduce his 5 day working week to a two day working week. This was refused. Instead, he was offered work on Friday and Saturday, but did not report for duty during October 2015

The Complainant was engaged in his own business as a chimney sweep and maintained that he would be unavailable for work until March 2016. The Complainant undertook to alert the respondent of his availability at that time.

At the hearing , the respondent outlined the chronology associated with the transition to the new run .The respondent confirmed that the complainant did varied hours during his placement at Employer No 2 but Employer No 2 had begun to dictate the hours and locations required to be serviced and  Employer No 2 as an agency was governed by that imperative .

It was understood by the respondent that the disciplinary issue had been concluded by September 30 and the complainant was due back to work on October 1^st. He did not turn up for work, insisting that he needed to work a two day week.  There were some informal contacts during October but no agreement followed. The respondent was approached by the complainant to consider a redundancy payment but this did not materialise.

The respondent sought to rely on the statutory protection provide in Section 13 of the Unfair Dismissals ( Amendment)  Act 1993 , where for the purposes of the Act , the complainant must be seen as an employee of Employer No 2 and Employer No 1  could not be held liable for an unfair dismissal or minimum notice claim .

The respondent submitted that the complainant had access to representation throughout the disciplinary procedure but he did not activate either an appeal or the grievance procedure in relation to any of the issues highlighted.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 11 of the Minimum Notice Act, 1973 requires that I make a decision in relation to the compliant in accordance with section 4 of the Act.

The Claim under the Payment of Wages Act, 1991 was withdrawn at the hearing.

Issues for Decision:

The issue for decision in this case is whether the complainant was unfairly dismissed by the respondent?

. In considering this, I had to examine the nature of the working relationship between the two employers mentioned. It was common case that the complainant had been employed continuously with employer No 1 (the respondent) since August 2015. It was also accepted by the parties that he had been placed with the “end user”, Employer No 2 for that period of time. This arrangement permitted his seasonal variation of hours and allowed him to support his child minding arrangements and his parallel business. This employment relationship is often referred to as “Triangulation “. The complainant was paid by the Agency (Employer No 1) and effectively managed by them.

In examining the facts of this case , I am mindful of the complainant enjoyed a normal working relationship with Employer 1 and Employer No 2 for a considerable period of time and the events as described by both parties in September and early October 2015 caused this relationship to be fractured . The Complainant believed that he had been treated badly and wrongly accused. The respondent contended that the changes effected to the complainants working hours were a legitimate management prerogative given the dissatisfaction expressed by the end user. Case law has given us some useful analogies to consider in this case where the “triangulation “employment was considered by employment Tribunals in the face of a claimed Unfair Dismissal.

In Bourton v Narcea ltd /AIBP ( UD 186/1994) in a case involving a Meat Boner in a Meat processing plant,Narcea supplied the Boner to the  AIBP  plant and had their own supervisor. An issue arose between an Anglo Irish Beef employee and the Boner which caused AIBP to seek to redeploy the Boner away from their plant. The Boner refused and claimed constructive Dismissal against Nacre before the EAT. AIBP subsequently joined the proceedings. AIBP was found to be the employer for the purposes of the claim for Unfair Dismissal Acts.

In Dacas v Brook St Bureau UK ltd[ 2004] 15 ELR 358 The Court of Appeal in the UK  found that the complainant, who had worked exclusively at a mental health hostel , placed there by the Agency ,had given a strong indication that she was in fact employed by Wandsworth Council . In this particular case , the complainant did not succeed  as her appeal to the Court had not referenced  the Council .

In Eileen Ambrose v Serono ltd UD 123/2006, [2007]18 ELR 184 the complainant, a Nurse, succeeded in her claim before the EAT for Unfair Dismissal against the “end user”, where she had been placed by the Agency. The EAT was critical of the “total lack of sensitivity “shown towards her in that instance.

In this case, I have considered all the oral and written submissions of the parties and I find that based on the evidence adduced, the Complainant was hired by Employer No 1 and placed with the “end user” Employer No 2 to work as a lorry Driver. There was a significant falling out between the complainant and Employer No 1 during the course of September –October 2015 which was triggered by the revised  service obligations imposed by Employer No 2. I find that the complainant was not aware of the full  extent of these concerns and was clearly perplexed by the perceived unilateral actions of the Employer No 1, with whom he had previously enjoyed a positive working relationship. I believe that the “ Triangulated “ employment relationship muddied  the waters considerably in this case as the parties did not convene as a tri partite at any time to address their joint concerns . I believe this would have gone a long way towards offering clarification for all parties.

During the course of the hearing, the parties adjourned to consider whether a potential existed to offer the complainant work back at Employer No 1. The respondent was keen to offer re-employment but he did not have a current vacancy for the complainant. The complainant indicated that he could not wait for an offer to come up.

I find that based on the evidence adduced that the complainant must, therefore , be considered to be employed by the “end user” Employer No 2 in this claim. It is of note that the complainants representative informed the hearing that parallel proceedings are live  before the WRC citing Employer No 2 as the Employer in an unfair dismissal case.

Legislation involved and requirements of legislation:

Section 13 of the Unfair Dismissals (Amendment) Act 1993 provides that:

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 –

1. The individual shall be deemed to be an employee employed by the third person under a contract of employment.

   …….

c)   Any redress under the Principal Act for Unfair Dismissal of the individual under the contract shall be awarded against the third person.

This confers statutory obligations on a particular employer in particular circumstances. In this case, I find that these particular circumstances point to Employer No 2 being the correct named Employer for the purposes outlined in the Act.

Decision:

The complaints against the respondent cannot succeed through lack of jurisdiction. The complainant had lodged proceedings against Employer No 2 and a date for this hearing is awaited.

Patsy Doyle     Adjudicator.

Dated:   8^th April 2016