3:1       The Law as applicable to this case.

The claim is filed under Section 8 of the Unfair Dismissal Act,1977.

The claim relied on the Pregnancy Grounds in Section 6(f) to establish Adjudication Officer jurisdiction and to establish exemption from Section 2(1) - the 12 months service exclusion ground.

However, in considering this case it was also necessary to consider who the appropriate and proper Employer was.

In this context Section 13 of the Unfair Dismissals (Amendment) Act,1993 must be reviewed. Section 13 quoted below.

“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, 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.”

The issues that this can give rise to were considered at length in the Irish Employment Law journal of 2005 by C. Kimber BL. - Agency Workers and employers’ responsibilities. (2005) 2 IELJ 79.

In plain English Kimber continues at Section 2.2 of the referenced article

“In summary therefore, with regard to the Unfair Dismissals Acts, and by virtue of a similar deeming provision in the Terms of Employment (Information) Act, the Maternity Protection Act and the Organisation of Working Time Act, with regard to those Acts also, a person working for an employer through an agency is deemed to be the employee of the person for whom they are doing the work. A contractual relationship is deemed to exist between the worker and the person for whom they are doing the work.”

Furthermore, additional reference, for guidance, needs to be made here to the Irish Labour Court case of Diageo Global Supply v Rooney [2004] ELR 133 and the landmark UK case of Brook Street v Dacas [2004] EWCA Civ 217 where the concept of the “responsible” employer in an Unfair dismissal context, in an Employment agency case, is discussed at length.

However, notwithstanding the legal arguments being made all cases must have reference to their own individual circumstances.

These will be considered below.

3:2       Consideration of the Evidence

Significant Oral Evidence supported by a Respondent written submission was given in this case.

A number of points were evident.

The Recruitment Agency was not involved in any direct way with the Complainant save from having her “on their books”. They had provided an outsourced HR and Payroll service to Client Firm B. it was stated that they had not interviewed the Complainant and had put her on their Agency books at the behest of client Firm B.

They Respondent was not aware of any difficulties with the Complainant until contacted by the Client Firm B, in mid-February 2018, with an instruction to remove her. At this stage it was clear that it was fait accompli as regards the Client Firm B and the role of the Agency Firm A was simply an administrative exercise in HR Management.

In her oral evidence the Complainant referred continuously to a Mr. XQ of Client Firm B as her immediate Supervisor/Manager. This was not disputed by the Respondent witnesses. The issue is that Mr. XQ was an employee of Firm B and it appeared beyond a reasonable doubt, from all the evidence, that he was in effect the Complainant’s day to day supervising Manager. The Complainant stated that she had informed Mr.XQ of her pregnancy in late December and certainly in early January 2018.

He had also been centrally involved in the fall out/Management of the alleged verbal disputes that were said to have taken place between her and her fellow colleagues regarding the Turkish/Kurdish political situation. In addition, he would have been well aware of the situation regarding alleged incidents at the Training/Induction programme.

In oral evidence it was very clear that the Agency – Recruitment Company A were completely unaware of these local difficulties until the Client Firm B requested the removal of the Complainant. It was obvious that the employment decisions in this case were taken by Client Firm B and were as stated by a Respondent witness “the End Decision was taken out of X Company (the Agency) hands”. Reference was made to the terms of the Contract between Agency A and Client Firm B regarding the options of Client Firm B to remove Agency staff

Client Company B were not joined in the case and accordingly gave no evidence. However, taking all the oral evidence from both parties at the Adjudication it was clear that it was of reasonable probity regarding events and personalities involved.

3:3           Conclusions.

Following the interpretation of the Unfair Dismissal, (Amendment Act) 1993 Section 13 set out above it is clear that the Agency -Firm A, the Respondent in this case, is not the correct Respondent particularly in a case where the pregnancy/maternity issue is being raised so centrally.

Accordingly, this claim as presented under the Unfair Dismissals Acts 1977- 2015 in Complaint CA-00017719-001 against Agency Firm A cannot be deemed to be well founded and must fall.

Act

Complaint/Dispute Reference No.

Summary decision

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

CA-00017719-001

Claim falls.

Wrong Respondent as per Section 13 of the Unfair Dismissal (Amendment) Act,1993.