ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006459

Parties:

Complaint(s):

Date of Adjudication Hearing: 24/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Room G.07 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

Preliminary Application.

Respondent’s submissions.

The named respondent is an employment agency. They placed the complainant with a third party limited company. The complainant was working with the third party limited company when the event that led to his dismissal occurred. In those circumstances, Section 13 of the Unfair Dismissal (Amendment )Act, 1993 applies and the 3^rd party limited company is the correct respondent and not the named respondent.

The complainant’s union were aware of this fact as is disclosed in their letter dated 25.01.2017 to the WRC. Therein it states:

“at the time of the dismissal he was hired to ………” .

Despite being in possession of this information the 3^rd party were not joined to the proceedings.

Complainant’s Submissions:

It is accepted that the complainant was hired out to the third party limited company. However, it was the agency who carried out the disciplinary hearings and ultimately dismissed the complainant. In those circumstances the agency are the correct employer.

Decision:

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

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.

Section 13 Unfair Dismissals ( Amendment) Act, 1993

(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.

I am satisfied based on the submissions of both parties in this matter, that the complainant was hired by the 3^rd party limited company and therefore pursuant to Section 13 is deemed to be an employee, employed by that third party, for the purposes of an Unfair Dismissal Claim.

In those circumstances I do not have jurisdiction to hear the matter. I strike out the matter for want of jurisdiction.

Dated:               06 June 2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

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