Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00009481-001

01/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009481-002

01/02/2017

The complainant was employed through a recruitment agency at one of the respondent’s centres. She contends she was unfairly dismissed on the basis of unsubstantiated complaints.   She further contends that she was not informed of a permanent vacancy and this is contrary to the Protection of Employees (Temporary Agency Workers) Act.

The complainant commenced work at the centre on 1^st February 2012. She was employed through an agency. A complaint was made by a staff member in relation to alleged serious misconduct by the complainant arising out of the weekend 17^th and 18^th September 2016. This complaint was only communicated to the Agency on 13^th October 2016. Following a reply from the Agency in which they stated that any cost in relation to the suspension of the complainant (i.e. suspension with pay) would have to be borne by the respondent, the respondent replied stating they no longer required the services of the complainant as ongoing recruitment had secured new staff members.   The respondent advised the Agency that they were no longer proceeding with the investigation but trusted that “as you are the employer” the Agency would “continue with your own investigation and update us as to the outcome”. It is submitted that an investigation was commenced by the respondent without any foundation. A decision was taken to remove her from the unit, in which she worked closely with a service user with whom she had formed a close bond and relationship.    It is submitted that the respondent collected all statements and made a decision and passed the matter back to the Agency. It is settled law that and employee is entitled to fair procedures and natural justice in terms of company procedures. The respondent carried out an investigation and then requested that the complainant be removed. The respondent then maintained that it was the domain of the Agency to investigate the matter.  Information was requested from the respondent as to how and why the complainant’s job was selected for permanent filling, but despite several reminders no information was forthcoming.   This would imply that the complainant was unfairly selected in order that she could be dismissed to avoid dealing with the investigation process.

In relation to the claim under the Protection of Employees (Temporary Agency Work) Act 2012, it is submitted that the respondent has a clear obligation under Section 11 to inform agency workers of vacant positions.   The complainant is adamant that she was not advised, nor was it brought to her attention that job vacancies were available. It is not accepted that signage was placed on notice boards or that the respondent issued an all staff memo as the complainant did not receive same.

The ending of the Public Sector Moratorium on recruitment in 2015 led to the decrease in dependency on agency workers and the focus on savings and efficiencies in the health services included displacement of agency staff. It is against this backdrop, and the need for the respondent to manage a significant budget deficit that led to the recruitment and displacement of agency staff and the respondent’s strategy to hire direct staff.   In July 2015, a memo directly for display in the centre where the complainant worked highlighting the fact that agency staff were being displaced and that hiring was taking place.   This was specifically sent as pointed out in an accompanying email as “agency staff aren’t applying for posts”.  

From mid-2015 onwards, more and more posts were being converted to permanent positions all of which could have been applied for by the complainant. A hiring fair took place on 8^th September 2016 which led to a logistical exercise matching preferred hours and skills to the needs of clients. This allowed for the complainant’s assignment to be terminated by an appointment of X who had the necessary skills and profile to support the client.   18 employees who were interviewed between 19^th and 27^th September were brought on board between 5^th October and 5^th December.

It is submitted that the directly employed staff were brought on board coincidentally at the same time that a complaint had been made against the complainant and this was outside the hirer’s control. The complainant’s assignment would have ended at this time in any case. It would not be reasonable that the hirer could not continue with the displacement of agency staff purely due to an individual being on paid suspension.   The complainant has continued to be assigned to one of the respondent’s centres and it is submitted that as she continues to be employed by the agency there was no dismissal, unfair or otherwise.

It is submitted that in accordance with Section 11 of the Protection of Employees (Temporary Agency Work) Act 2012, vacancies were open to agency staff and every effort was made to inform the complainant of such vacancies. It is simply not credible that the complainant was unaware of the recruitment of directly hired staff. She failed to apply for any role.

It is submitted that there has been no dismissal. The complainant remains employed. It is argued that as is envisaged by the Directive on Temporary Agency Workers, and Section 11 of the legislation, agency work is inherently temporary, addressing a temporary need of the employer. It is for that reason that employers are required to alert agency workers to direct employment opportunities in their employment. The respondent did this but the complainant failed to apply for same therefore clearly any dismissal is fair in the circumstances as there was no ongoing need for agency workers. The complainant is still eligible to apply for positions within the respondent’s employment and her representative has been advised accordingly.

CA-00009481-001

Section 11 of the Act provides:

“11- A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position”.

There was a conflict of evidence regarding the communication of the vacancies the respondent advertised in the recruitment drive for the displacement of agency staff. I accept the evidence of the respondent that the complainant was clearly made aware of the vacancies and I do not uphold her complaint.

CA-00009481-002

I note the respondent’s contention that no dismissal took place and in support of this contention, there is a reliance on a number of factors, i.e. that the complainant works for some hours at another of the respondent’s centres and that the complainant did not apply for a permanent position and her assignment came to an end.   The respondent had commenced an investigation into alleged misconduct by the complainant without invoking disciplinary procedures and then terminated the assignment. The respondent stated to the agency that the respondent “no longer required” the complainant.       I note the ongoing recruitment campaign but do not accept the respondent’s assertion that the timing of the termination of the assignment was co-incidental.                                                                                                 I find that the complainant was dismissed.

Section 13 of the Unfair Dismissals Act (as amended) 1993 provides that agency workers can seek redress for unfair dismissal from the business in which they are placed by an employment agency (i.e. from the “end-user”). The “end-user” in this instant case is the respondent. There is an onus on the “end-user” to demonstrate that the agency worker’s assignment was terminated in accordance with fair procedures. In this case there was no evidence of written or oral communication from the respondent to the complainant advising her of the charges against her, her right to be accompanied, her right to be heard and the potential implications for her future employment.   The respondent simply ended the assignment. While I note the submissions in relation to the ongoing recruitment, I find that this should not have interfered with the complainant’s right to fair procedures.

For all the reasons cited above, I find the complainant was unfairly dismissed.