UD44/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                     CASE NO.

Patrick Staunton                                                                              UD44/2012

against the recommendation of the Rights Commissioner in the case of:

Headway Security & Management Investigations Ltd

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. P.  O'Leary B L

Members:     Mr G.  Mc Auliffe

                    Mr T.  Brady

heard this appeal at Dublin on 14th December 2015

Representation:

Appellant:     In person

Respondent: No representation listed

This case came before the Tribunal by way of an appeal by a former employee against a recommendation of a Right’ Commissioner reference r-107729-ud-11/JT

The determination of the Tribunal was as follows:

The Appellant was employed as a Security Guard with the above named Respondent from the 17^th September 2003 on the premises of a third party.  The Claimant informed the Tribunal that he received his instructions from a third party.  He stated that he was dismissed by the Respondent on the instructions of the third party.

The Tribunal took note of Section 13 of the Unfair Dismissals (Amendment) Act, 1993 No.22

13.—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 Tribunal also considered the provisions of Section 1 (2) of the Employment Agency Act, 1971.

(2) For the purposes of this Act, the business of an employment agency means the business of seeking, whether for reward or otherwise, on behalf of others, persons who will give or accept employment, and includes the obtaining or supplying for reward of persons who will accept employment from or render services to others.

Taking into consideration the above legislation the Tribunal considers that the appropriate Respondent in this case is the third party.

This Appeal is in respect of a recommendation from a Rights Commissioners hearing and the Tribunal has no authority to join a third party to the proceedings at this stage. This must be done at the tribunal of first instance which is the Rights Commissioners. The Claimant/Appellant must return to the Rights Commissioner and make an application under Section 39 of the Organisation of Working Time Act, 1997 in order to join the third party. It is for a Rights Commissioner to preside over such an application.

Without the application being made and granted the Appellant is non- suited.    

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)