Complainant

Respondent

Anonymised Parties

Construction Worker

Construction Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017740-001

05/03/2018

The Complainant was employed as a construction worker by the Respondent from January 2011 until December 2017.

The Complainant asserted that he was unfairly dismissed as a result of taking a personal injuries case against the Respondent arising from a serious workplace injury.

The Complainant stated that he was employed by the Respondent from January 2011 until December 2017 as a construction worker.

The Complainant stated that he commenced his work for the Respondent via a recruitment agency but was at all times an employee of the Respondent.   The Complainant submitted copies of the CRO Company Details which show that the recruitment agency and the Respondent are registered at the same address.

It is the Complainant’s uncontested position that:

·         He took instructions from, and was under the control of, an agent/employee of the Respondent at all times during the course of his work

·         He was paid by an agent/employee of the Respondent

·         It was the Respondent who dismissed him from his employment

·         It was the Respondent who supplied him with his P45

The Complainant also contended that he never worked as an independent contractor for the Respondent. He further contended that at all times there was a mutuality of obligation between the Complainant and the Respondent so that the Complainant worked 40 hours every week and that the Respondent would provide sufficient work for the Complainant.

It is the Complainant’s position that he is relying on the provisions of Section 13 the Unfair Dismissals (Amendment) Act 1993 which provides that the person hiring the individual from the employment agency is deemed to be the employer for the purposes of the Unfair Dismissals Acts.

There was no appearance by the Respondent. On 6 July 2018 (the last working day before the adjudication hearing) the WRC received correspondence from the Respondent to the effect that the Complainant is not and has never been an employee of the Respondent.

As mentioned previously, the WRC received further correspondence from the Respondent on 23 July 2018 referring to the Complainant’s written submission to the WRC and restating that the Complainant was not and never had been an employee of the Respondent.

Section 13 of the Unfair Dismissals (Amendment) Act 1993 provides that:

“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.”

As an Adjudication Officer of the WRC, I am required under Section 41(5)(a) of the Workplace Relations Act 2015 to inquire into a complaint which has been referred to me by the Director General and to give the parties to the complaint an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

If the Respondent is of the view that they are incorrectly named in these proceedings, the place to adduce evidence to that effect is at the Adjudication Hearing and not by means of telephone conversations or written correspondence with the administrative staff of the Adjudication Services.

As the Respondent did not attend the hearing, I am reliant on the uncontested evidence adduced by the Complainant.

From the uncontested evidence adduced, I find that the Complainant was recruited by a recruitment agency to work for the Respondent. Accordingly, in line with Section 13 of the Unfair Dismissals (Amendment) Act 1993, I find that for the purpose of these proceedings, the Complainant shall be deemed to be an employee of the Respondent.

The Complainant stated that he was employed by the Respondent from January 2011 until December 2017 as a construction worker.

The Complainant submitted that he suffered serious injury while at work for the Respondent in October, 2016. He ruptured his anterior cruciate ligament and required knee surgery which necessitated him taking time off work. Arising from the injury, the Complainant took a personal injuries claim against the Respondent.

According to the Complainant, he went to the offices of the Respondent on 30 November 2017 and informed the Respondent that he was fit to return to work. The Complainant had a Doctor’s note to this effect which he showed to the Respondent. The Complainant said that there were no witnesses present for the conversation between himself and the Respondent.

The Complainant asserted that the Respondent asked the Complainant why he had taken a personal injuries case against him.

It is the Complainant’s position that the Respondent told him that he had no work for him unless he dropped his personal injuries claim. The Complainant asserted that the Respondent told him that if he took €5,000 in order to settle the personal injuries claim he would be given work.

The Complainant submitted that he rejected the Respondent’s proposal in relation to his personal injuries claim.

The Complainant contended that it was clear that unless he withdrew his personal injuries claim, the Respondent was terminating his employment.

It is the Complainant’s position that he had recovered from his injuries and needed to start work again. With this in mind he sought his P45 from the Respondent. This was furnished to him on 1 December, 2017.

There was no submission or appearance by the Respondent. The Respondent gave no notice to the WRC in advance of the hearing that he would not be attending.

Section 6 of the Unfair Dismissals Act 1997 provides that a dismissal shall be unfair if it occurs as a result of proceedings brought by the employee against the employer in a civil court of law:

“6.— (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.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

… ( c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,”

The burden of proof rests with the Respondent to establish the substantial grounds justifying the dismissal of the Complainant in this case. In the absence of the Respondent, I must rely on the uncontested evidence adduced by the Complainant.

I find that the Complainant attempted to return to work on 30 November 2017 after a long absence due to injury and that he had a medical certificate attesting to his fitness to resume his employment.

I find that the Respondent denied the Complainant the opportunity to resume his employment unless he withdrew his personal injuries claim against the Respondent.

I find that the Complainant was effectively dismissed by the Respondent when he declined to withdraw his personal injuries claim.

I find that this complaint to be well founded. I find that the Complainant was unfairly dismissed by the Respondent as a result of taking a personal injuries case against him.

The Complainant has not been employed since his employment with the Respondent ceased on 1 December 2017 which is a period of 31 weeks to the date of the adjudication hearing.

In calculating the level of compensation I took into consideration the efforts of the Complainant to mitigate his losses and I find that his efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

I find this case to be well founded and I award the Complainant €12,000 which is approximately 23 weeks’ wages.

Unfair Dismissal, Personal injury