ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003003

Parties:

Complaints:

Date of Adjudication Hearing: 25^th April 2017 and 21^st June 2017

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

SUMMARY OF RESPONDENT’S POSITION.

Unfair Dismissals Act, 1977 – 2015. – The Complainant is not an employee of the Respondent. He is employed by a named Recruitment Agency and he was placed into the Respondent’s Distribution Centre in a named location on 9^th September 2008. The Respondent raised a preliminary argument under Section 1(a) of the Unfair Dismissals Act, 1977 – 2015 and stated that the Complainant is not nor has ever been an employee of the Respondent. The Respondent understands that the contract of employment between the Complainant and the Recruitment Agency remains and has not been severed. Therefore the fact of a dismissal is in dispute,

The Complainant commenced sick leave on 8^th August 2014 and on 12^th November 2015 the Recruitment Agency wrote to the Complainant to advise him that due to his continued absence on sick leave and no progress in relation to a possible return to work they could no longer keep his assignment open to the Respondent Company but that he remained an employee of the Recruitment Agency and to notify them when he was deemed fit to resume work.

The Respondent was aware of Section 13(a) of the Unfair Dismissals (Amendment) Act, 1993 but stated that no dismissal occurred as the Complainant remained on sick leave and remained an employee of the Recruitment Agency.

Minimum Notice and Terms of Employment Act, 1973 – 2015 – As there was no dismissal of the Complainant as defined by the Unfair Dismissals Act, 1977 – 2015, the Complainant is not entitled to payment of minimum notice.

FINDINGS AND CONCLUSIONS.

Unfair Dismissals Act, 1977 – 2015. – On the basis of the evidence, written submissions and information provided to me at my request post the Heading on 17^th July 2017 I find as follows: Both Parties confirmed that the Complainant was employed on a Contract of Employment with a named Recruitment Agency and that he was assigned to the Respondent Company effective from 9^th September 2008 and he continued to work until he commenced sick leave on 8^th August 2014.

Both Parties confirmed that the Complainant continued to submit medical certificates on a monthly basis to his Employer, the Recruitment Agency, up until he submitted a medical certificate dated 7^th February 2017 stating the Complainant was fit to work effective from 17^th February 2017.

Both Parties confirmed that the Complainant’s Employer, the Recruitment Agency, sent the Complainant for a fitness/abseentism review which took place on 28^th February 2017 and this Occupational Health Physician deemed the Complainant unfit to return to work as a Warehouse Operative.

Both Parties confirmed at the Hearing that the Complainant requested his P45 from his Employer, the Recruitment Agency, on 19^th May 2017 and this was provided to him.

Both Parties also confirmed that the Complainant had taken a personal injury case against the Respondent Company which was settled between the Parties in December 2016.

Section 13(a) of the Unfair Dismissals (Amendment) Act 1993 provides 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 servicer for a third person (whether or not the third party 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) the, 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.

Section 1(1) of the Unfair Dismissals Act, 1977 – 2015 provides as follows: date of dismissal is – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Preliminary Issue – Dismissal.

The evidence was that the Complainant was employed on a Contract of Employment with a named Recruitment Agency and that he was assigned as a Warehouse Operative to work with the Respondent Company from 9^th September 2008. The evidence was that the Complainant commenced certified sick leave effective from 8^th August 2014, he submitted monthly medical certificates to his Employer up to February 2017 when the medical practitioner deemed him fit to work on 17^th February 2017. The evidence also was that an Occupational Health Physician deemed him unfit to work as a Warehouse Operative on 28^th February 2017 and the Complainant requested his P 45 on 19^th May 2017.

The Complainant received a letter from his Employer, the Recruitment Agency, and dated 12^th November 2015 which stated as follows: - Going by the medical certificates you are submitting on a monthly base there is no progress in relation to your medical condition and you are unable to return to work. Because of your extensive sick leave and because your medical condition remains unchanged I have no other options than to inform you that we can no longer hold your position in …..open and your assignment on this site is terminated. Your contract with ……is still open. In case your medical conditions change please do not hesitate to contact … so we can arrange a meeting or any support that you may need to help you to return to work.

I had requested the Complainant to forward me a statement from the Department of Social Protection in relation to specific dates he was claiming either Illness Benefit or Jobseekers Benefit Benefit. Some details were provided to me by email dated 17^th July 2017 although there were some gaps. This shows that the Complainant was in receipt of Illness Benefit from the Department from 14^th August 2014 to 28^th June 2016. The Complainant was in receipt of Jobseekers Allowance from 31^st May 2017 to 20^th June 2017. There was also one SW Payment Slip provided dated 23^rd February 2017 in relation to payment of Supplementary Welfare Allowance. There was no evidence presented to me post the Hearing as to which SW Benefit, if any the Complainant received from 28^th June 2016 when his Illness Benefit ceased and 31^st May 2017 when his Jobseekers Allowance commenced.

On the basis of all the evidence I find that there was no evidence presented to me to substantiate the complaint that the Complainant had been dismissed on 12^th November 2015.

Minimum Notice and Terms of Employment Act, 1973 – 2015. I view of my findings in relation to the complaint under the Unfair Dismissals Act, 1977 – 2015 that there was no dismissal I find that this complaint is not well founded.

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 not well founded.

CA-00004160-002

In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above in relation to the complaint under the Minimum Notice and Terms of Employment Act, 1973 I declare this complaint is not well founded.

Dated:   30 September 2017

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