ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00008131

Parties:

Complaint(s):

Date of Adjudication Hearing: 20/10/2017

Workplace Relations Commission Adjudication Officer: Marian Duffy

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

Background:

The complainant was employed by an employment agency and was assigned to work in the respondent company on the 5th of October 2015. His contract was renewed on the 5th of October 2016 and his assignment to the respondent company was terminated on the 17th October 2016.   He is claiming that he was unfairly dismissed and is seeking compensation. The respondent’s case is that they are not the correct respondent as the complainant was an agency worker and the agency was the complainant’s employer.

Summary of Complainant’s Case:

The complainant’s solicitor submitted that the complainant was deemed to be an employee of the respondent pursuant to section 13(a) of the Unfair Dismissals Act 2003. The respondent is responsible pursuant to section 13 as the dismissing party and the third person for the purposes of the Acts and is therefore the appropriate party for these proceedings. The employment agency, in the course of that business, placed the complainant in the respondent’s employment. It is submitted that Burton v Narcea Limited and Anglo Irish Beef Processors UD 186/1994; and Archibald and ESB UD642/2003 are both relevant cases in this regard. It was submitted that it is irrelevant whether the third party is not a party to the contract of employment or does not pay the salary of the complainant. It is denied that the complainant was underperforming or that he fell below the targets. The complainant stated that his initial contract was for 12 months and he signed a new contract in early October 2016.The complainant stated that he had a one-to-one with his team leader every week, but there was no discussion about his performance. He said that they are operational matters training and mentoring discussed at these meetings.     He said he knew his performance targets and they were changed on a quarterly basis. He said as far as he was aware that he was performing well. He said that the sales performance targets were impossible to meet. There were new recruits on the team. He was called to a meeting with his team leader and told that he would have to sell the bonus scheme to the new recruits telling them that the targets were achievable. He said he told his team leader that he was not comfortable with this because the targets were not achievable. The complainant said everybody on the team had issues with the targets. Around the end of September 2016, he met with the new team members together with the team leader and some of the other agency workers on the team. During this meeting, he was asked to sell the bonus scheme to the new members. Some of the new members asked about achieving the bonus and he told them that realistically it was very hard to achieve the full bonus and that he had received €500 of a bonus. He said the manager looked at him and he knew she was angry and she left the room. She went to her manager and later that day he was called to a meeting with the manager. He told the manager that the bonus targets were not achievable and that there must be more and improved sales training. He also let the manager know that he was unhappy with the respect that agency workers were shown by the managers. He said there was no arguments and it was not aggressive meeting. The claimant said that the following Monday he was called to the employment agencies office and was told that he was been taken off the contract with the respondent because he was confrontational. He said he was shocked with this because he was trying to help and train new people in the business. He said that the agency did not tell him that they were going to continue to pay him, but he accepts that he was paid for four weeks. He said he was offered a job with a Bank which he had done before. It was a technical support role and he was not interested in that job because it was not the type of job he was looking for to develop his career in digital marketing and it was at a lower rate of pay. He said he sought out interviews himself but was unsuccessful and he was referred for interviews by the employment agency some of them were part time which he was not interested in.   He did about 45 interviews in all and applied for about 300 jobs. He was successful in getting one in his career choice at a higher rate of pay and started work on 4th September 2017.      

Summary of Respondent’s Case:

The respondent submitted that the complainant was never employed by the company and that he was always employed by an employment agency. The complainant entered into a contract of employment with the recruitment agency and he was placed in the respondent company. The agency paid the complainant. The complainant’s assignment with the respondent was terminated on the 17th after October 2016. It is submitted that the complainant who is seeking to rely on section 13(a) of the Unfair Dismissals Act 1977 as amended to pursue his complaint against the respondent cannot do so as he continued in the employment of the employment agency after his assignment with the respondent was terminated and they continued to pay his normal salary. It is the respondent’s submission that for section 13 A of the Unfair Dismissals Act to apply the complainant must have been dismissed. It is denied that the complainant was dismissed at the end of this assignment with the respondent. In the circumstances, the act was never engaged and therefore section 13 A just not apply in this case. The respondent understands that the complainant’s employment with the recruitment agency continued until around 31 January 2017 and therefore any claim under the Unfair Dismissal Act rests with the employment agency. The respondent further submitted that the complainant resigned his position with the agency. The agency informed the complaint that he would be continued to be paid until he was redeployed to another client. The complainant stopped communicating with the employment agency after which the agency stopped paying his salary on 18 November 2016. It is submitted that if there was a finding against the respondent that the complainant was dismissed by them on 17 October 2016 the complainant suffered no loss whatsoever as he was employed and continued to be employed by the employment agency until he resigned from the employment. Furthermore, the complainant has made no reasonable efforts to mitigate his loss.           If there is a finding that the complainant was dismissed by the respondent and the provisions of section 13 A applies, the complainant suffered no financial loss and therefore the maximum award which can be made is four weeks’ remuneration.       The Managing Director of the respondent company said that the complainant was not meeting the sales targets set in the last quarter and he did not get a commission. His team leader reviewed the targets with him and the complaint was not happy and was questioning the targets. The respondent learnt that the complainant was disparaging about the process to other team members. The complainant did not turn up for work until 12:30 the following day. The team leader informed her manager that she was uncomfortable meeting with the complainant because of his attitude and he was aggressive. The manager met with the complainant and found him unresponsive not engaging and aggressive. It was decided to end the complainant’s assignment because of his attitude and behaviour and the employment agency was informed. The complainant was not warned and disciplinary procedures were not applied to him because this is a matter for the employment agency. It is a matter for them to manage performance.  

Findings and Conclusions:

The first matter I must decide is whether the complainant has taken the case against the correct respondent. The complainant was placed in the respondent’s company by an employment agency.   Section 13 of the Unfair Dismissal Act 1993 states as follows: “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.” Therefore, a person engaged through an employment agency is covered by the Act. It is clear from this section that for the purposes of the Act that the party hiring the individual from the employment agency, that is the end user, is deemed to be the employer. I am satisfied therefore that the complainant has taken his complaint against the correct respondent. The respondent’s argument that the complainant was not dismissed by them is incorrect. I note that the respondents evidence is that is that they instructed the employment agency to remove the complainant from the company. I am rejecting the respondent’s argument that section 13 (a) does not apply in circumstances where the complainant was continued in the employment by the employment agency. I am satisfied that the complainant was dismissed from the respondent company. I note that the complainant was dismissed without warning or the application of any procedures. Respondent managing director attended the hearing, but neither the complainant’s team leader or manager attended. There was no direct evidence provided to me that the complainant received any warnings whatsoever. The managing director accepted that when the assignment was ended that the complainant received no warning. The company has a grievance and disciplinary procedure but this was not applied to the complaint. Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows: “(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Subsection (4)(b) provides that “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”. In addition, subsection (7) provides that where appropriate regard may be had “to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.” Therefore, the burden of proof rests with the respondent to demonstrate the dismissal was neither substantially nor procedurally unfair. I note that the complainant was not provided with any good reason for his dismissal by the respondent other than being told by the employment agency that his contract was ended because he was confrontational.   I am satisfied, in circumstances where the complainant’s contract was extended a week prior to his dismissal, there were no substantial grounds for his dismissal. The dismissal was procedurally unfair given the complete lack of any disciplinary processes or transparent procedures. It is fundamental to any dismissal that fair procedures are applied, that the person being dismissed knows the reasons for the decision and has an opportunity to respond and to appeal the decision. For all the above reasons, I find that the complainant’s dismissal was unfair within the meaning of the Act. It was submitted by the respondent that the complainant failed to mitigate his loss in that he failed to keep in contact with the employment agency and they discontinued to pay him as a result.   He was also offered jobs which he failed to take up and in the circumstances, he should be only be awarded four weeks’ wages in accordance with Section 7(1)(c)(ii) of the Act. I note from the complainant’s evidence that he applied for over three hundred jobs and that he was out of work until September 2017. While I accept, the positions offered to the complainant by the employment agency were not in his career choice of digital marketing, there was an onus on the him to mitigate his loss. Considering that the complainant was paid for four weeks by the employment agency, he had a financial loss for a period of eight and a half months. Given his failure to take the position in the bank, I am reducing the amount by three months’ remuneration. I am awarding the complainant €8,958.00.            

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

In accordance with Section 8 (1) (c) of the Unfair Dismissal Act, 1977 – 2015 and in view of my findings and conclusions above, I declare this complaint is well founded and I make an award of compensation in the amount of €8,958.00 being the equivalent of five and a half months’ loss of earnings and subject to any lawful deductions.    

Dated:   12/12/17

Workplace Relations Commission Adjudication Officer: Marian Duffy

Key Words:

Agency Worker, section 13(a) Unfair Dismissals Act,