EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
John Paul O Connell UD540/2015
-claimant UD303/2015
Against
Uniphar Public Limited Company
- respondent 1
Team Obair Ltd
- respondent 2
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Ms A. Gaule
Mr D. Thomas
heard this claim at Dublin on 31st March 2016 and 21st June 2016
Representation:
Claimant: In person
Respondent 1: Mr. Marcus Dowling BL on the first day, Mr. Padraic Lyons B.L.
on the second day , instructed by,
William Fry, 2 Grand Canal Square, Dublin 2
Background
Respondent 1 is a pharmaceutical wholesale business supplying hospitals, GPs and pharmacies. Respondent 2 is an employment agency. Respondent 1 accepts that they are the claimant’s employer under the Acts but maintain that this does not apply in these circumstances as the claimant did further work for the employment agency post his termination with respondent 1.
Claimant’s Case
The claimant enlisted with an employment agency C on 16th June 2012. Employment Agency C was taken over by the second named respondent. The claimant secured employment on 16th June 2012 as a general operative with the first named respondent. The respondent operated three shifts. The claimant worked 37 ½ hrs five days a week and in 2014 he worked a three day week. He did not apply for positions that were advertised internally. These entailed working five days over 7 days and was no advantage to him. JM, the operations manager for respondent 1 had approached and enquired if he was interested in applying for one of the positions but he declined. He would remain on the same wage. He had secured other bits and pieces of work elsewhere during this time.
At the completion of his shift (10 pm) on 1st October 2014 the security officer wished to search the claimant before he left the building. Another employee had earlier refused to be searched as he left the building. The security officer’s tone was aggressive in nature and the claimant requested to have a witness present. He would have presumed that he would be entitled to have a supervisor to be present at the time. As there was going to be a significant delay in sourcing someone the claimant agreed to be searched without the need for a witness. The claimant was aware that bags were searched on a random basis and that security had been tightened up with an increase in cameras in the warehouse.
On 2nd October 2014 while the claimant was en route to work he received a telephone call from the manager of the second named respondent (his employment agency) informing him that he had been suspended from work because of an allegation of misconduct at the end of his shift the previous evening.
On 14th October 2014 the claimant was sent on a two day training course in ADM (another company) after which he expected to return to respondent no 1. During the period 15th October 2014 to 17th November 2014 the claimant was on paid holidays as his wife had a baby on 3rd November 2014. On 28th October 2014 he had secured two days work in a Castle doing construction work and this work continued until April 2015. He was earning €400 per week.
The claimant received text messages from S of the employment agency on each of the days 16th, 17th 20th and 21st October informing him that no work was available.
On 17th November 2014 S in a text to the claimant asked him if he were still available for work in ADM. The claimant believed that the first named respondent had sacked him despite several telephone calls to both respondents to clarify his position.
On 6 January 2015 the claimant wrote to respondent 1 seeking clarification on several matters. He wanted confirmation that he was an employee of this respondent and why his employment had terminated on 1st October 2014 without any reason being furnished or notice given. The claimant had never being issued with any warnings during his tenure with respondent 1. He has not secured employment since April 2015.
Although respondent 2 has a signed copy of the claimant’s induction training for respondent 1 he does not accept he participated in said training. The claimant accepts he was offered further employment by respondent 2; this entailed 2 days’ work which included 4 hours of training for the new company. He was not aware that the 2 days’ work was in preparation for the regular work that would become available in the new company during their busy period. When the claimant was contacted to take up this work he declined as he had found alternative employment himself.
Respondent 1 Case
Respondent 1 is a pharmaceutical wholesale business supplying hospitals, GPs and pharmacies. There are 300 staff on the site the claimant worked at as a general operative; 100 of whom are agency staff. Respondent 1 sources staff from an employment agency (respondent 2.) The agency is responsible for all aspects of their employees including any grievance and disciplinary issues. The employees they send to respondent 1 get specialised induction training in all of respondent 1’s policies and procedures. Generally after a period of time the agency staff become direct employees as all vacancies are advertised internally. The claimant was a good worker so was requested to apply for these vacancies, but he declined.
After a number of series security breaches respondent 1 analysed the site for vulnerable points. As a result, a number of additional security cameras were installed and the random searches were significantly increased. Random staff searches when exiting the site were always in place.
On the night of the 1st of October 2010 the claimant was stopped for a search while leaving. He initially refused to be searched but then complied. He was aggressive and abusive to security staff during the process (evidence provided by the Security Guard). The Tribunal viewed the CCTV footage of same. The Operations Manager was informed of the incident, (she was initially informed that he had refused to be searched and found out at a later date that he had complied.) Due to the nature of the business and the seriousness of any security breaches there was zero tolerance to any such incidents. She called the claimant’s employment agency and informed them that the claimant was no longer required to work for respondent 1. The claimant’s employment was never terminated by respondent 2.
Respondent 2 Case
All employees got Induction training and in the case of employees going to respondent 1 specialised training on all of their policies and procedures. On the 2nd of October following an incident on the night before respondent 2 was informed that respondent 1 no longer required the claimant’s services. After informing the claimant, respondent 2 then followed up with respondent 1 to get the details of the incident.
The claimant was only available to work 3 days a week and it had to be within a particular distance of his house. This proved difficult for respondent 2 but they did find some work for him and sent the claimant on the training for this job. The claimant was informed he was doing the training in preparation for the regular work that would happen during the new company’s busy period. The claimant successfully completed the training on the 14th & 15th of October 2014. He was contacted on the 17th of November offering him the work that he had trained for. He declined the offer of work. As a result of a letter from the claimant on the 16th of January 2015 respondent 2 gave the claimant the grievance policy and a meeting was held. All of the claimant’s issues were resolved accept his removal from respondent 1; as the Unfair Dismissals claim had already been lodged against respondent 1 he did not want to talk about it.
Determination
Section 13 of the Unfair Dismissals (Amendment) Act 1993 states as follows:
“Employment agencies.
1 3.—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.”
It is clear from the above provision that, in the case at hand, the Claimant was the employee of Respondent 1 at least while he was working for them. It was accepted that this was the case, by Respondent 1, but it was submitted that when the Claimant went to work for another employer this link was severed and that Respondent 1 was no longer responsible for him, and could not be the employer for the purposes of the legislation.
The Tribunal disagrees with this submission.
In the particular circumstances of this case, the Tribunal finds that the Claimant was unfairly dismissed by Respondent 1. There was no fair procedure at all allowing for an explanation of the behaviour of the Claimant. Indeed, the person who took the decision that he would no longer work for Respondent 1, had not viewed the cctv footage available at the time she made the decisoin to terminate the Claimant’s employment and it is apparent that the Claimant was actually terminated in his work because it was believed that he had refused a search, which was not the case.
The Tribunal rejects the submission that Respondent 1 was no longer responsible for the Claimant once he did any other work for another employer. In the circumstances of this case and on the basis of the evidence heard, the Claimant reasonably believed that while he was doing the training course and work over two days with another employer on 14 and 15 October he was still an employee of Respondent 1. The tribunal finds that Respondent 1 cannot be relieved of its duties under the above Section 13 because of these two days in the particular circumstances of this case. Whilen Respodnent 1 told the Agency, ie Respodnent 2, that they no longer required the Claimant’s services without due process having been observed, that amounted to an Unfair Dismissal under the 1977 Act as amended.
However, the Claimant did not do all that he could to minimise his loss. He was not available for work while he had a new-born child and was on holidays, which was of course reasonable, but the loss of income that resulted cannot be attributed to Respondent 1.
The Claimant made very little effort to secure employment of the kind that he had been doing for Respondent 1, and therefore only a limited amount of the loss that he suffered can be attributed to Respondent 1. The Claimant was cross-examined about his availablility for work and his alternative employment, and the Tribunal is not satisfied that he made a reasonable effort to minimise the loss that he suffered.
Having considered all of the evidence and submissions, the Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €900.00 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)