ADJ-00010645

Complainant

Respondent

Anonymised Parties

Library Attendant

Local Authority

Act

Complaint Reference No.

Date of Receipt

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

CA-00013961-001

15/09/2017

The Complainant signed a contract for services with a named Recruitment Agency, as a temporary worker on 4th November 2010. He was engaged by the Respondent, as of that date. He was paid €499.89 weekly and worked on average 36 hours a week. The Complainant was given his P45 by the Recruitment Agency at the end of February 2017 and he was informed that his contract with the Local Authority was being terminated on the 17th March 2017. The Complainant claims that he was unfairly dismissed and is seeking re-engagement and/or compensation.

The Respondent denies the claim.

The subject matter of this complaint is identical to Adjudication Officer Decision No: ADJ-00010562.

The Respondent submits that the Unfair Dismissal Act, 1977 relates to a claim by an employee against an employer for redress under this Act. The Respondent submits that under the Act the following definitions apply: “employee” means an individual who has entered into or works under a contract of employment.

“employer”, in relation to an employee, means the person by whom the employee is employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act, 1941, shall be deemed to be employed by the local authority.

The Respondent submits that the Complainant is an agency worker and has no contract of employment with the Respondent and is therefore not deemed to be employed by the Local Authority.

The Respondent submits that in a unique, historical arrangement which came about as a result of a staffing embargo, the Local Authority used the services of the named Recruitment Agency to fill a number of roles on a temporary “contract for services” basis. The Recruitment Agency provided ‘Clients’ to fill the temporary positions in four different areas of work. The Complainant was one such Client. Due to the Complainant’s status as a temporary worker with the Recruitment Agency, he had no contract of employment with the Local Authority and was not considered to be an employee. The Recruitment Agency paid the Complainant directly following the submission of an approved timesheet. The Agency in turn, invoiced the Local Authority for the contracted services. Terms and Conditions in relation to this matter issued from the Recruitment Agency to both their client (the Complainant) and the Employment Business (the Local Authority). Section 2.3 of said Terms and Conditions states that the Agreement does not give rise to a contract of employment between the Employment Business (the Local Authority) and the Temporary Worker (the Complainant). Section 9.1 states that the Temporary Worker (the Complainant) has been engaged by the Employment Business (the Local Authority) under a contract for services. Section 9.6(b) states that the Temporary Worker be given the same information about all permanent job vacancies as its own permanent employee during the period of the Temporary Worker relevant assignment. Section 19 clearly states that nothing in this Agreement shall give raise to an employment relationship between the temporary worker and the Employment Business.

The Respondent submits that it is not the correct respondent for the purpose of the Act.

lt is the Complainant's case that he was an employee of the Respondent and was unfairly dismissed on the 17 March 2017. This submission is supported by the named Recruitment Agency.

The Complainant relies on Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 I.R. 34.

The Complainant submits the following evidence in support of his case:

·         15 August 2011 - email correspondence from the Complainant's personal email address to BH of the Respondent requesting time off. This is clear evidence of the Respondent's high level of control with regard the Complainant's annual leave.

·         5 February 2015 - email correspondence from the Area Manager Mr. B to the Complainant's personal email address regarding the position in the library. This is contradictory evidence to that of Mr B's who stated he did not communicate via the Complainant's personal email address, at the hearing.

·         19 February 2015 - email correspondence from Mr. B to the Complainant's personal email address with the Garda Vetting Forms attached. lt is also noted that the Complainant received his hours from MG of the Respondent thereby further evidence of the Respondent's high level of control with regard the Complainant's working day.

·         14 April 2015 - email correspondence from the Complainant's personal email address to DD of the Respondent regarding training. Evidence that the Complainant did not have any independent input into the role nor was he required to invest in training.

·         ICT logs demonstrating that the Complainant was set up with an email address from the Respondent and reported issues with access to his email as late as 2016.

·         15 April 2015 - 21 April 2015 - email correspondence from DD of the Respondent to the Complainant's personal email address acknowledging that he had difficulty accessing his work email. This email related to training on "Dealing with aggressive members of the public" which the Complainant gave evidence at the WRC hearing that he attended. Further evidence that the Complainant did not have any independent input into the role nor was he required to invest in training.

·         26 August 2015 - 25 September 2015 - email correspondence from Complainant's personal email address to DD of the Respondent regarding the local authority email address, car park fob and set up on the Horizon system.

·         30 October 2015 & 22 June 2016 - email correspondence from Complainant's personal email address to N O’R and MG of the Respondent. This is clear evidence of the Respondent's high level of control with regard the Complainant's leave for medical appointments, annual leave and time in lieu.

·         26 September 2016 - email correspondence from MG of the Respondent to the Complainant's personal email address regarding training courses he was invited and attended. Evidence that the Complainant did not have any independent input into the role nor was he required to invest in training.

·         28 August 2017 - email correspondence from a former colleague of the Complainant's advising of an expression of interest in the position of Library Assistant with the Respondent to which the Complainant gave evidence that he did apply but was unsuccessful. The Briefing Document for the position of Library Assistant does not specify any such security training requirement, as repeatedly alleged by the Respondent.

lt is at all times the Complainant's case that he was an employee of the Respondent.

There was no dispute between the parties that the Complainant was recruited through a named recruitment agency and commenced his engagement with the Respondent on 4th November 2010. The Respondent argues that they are not the correct respondent in respect of the Complainant’s claim under the Unfair Dismissal Act, 1997 as the Complainant is an agency worker and is not deemed to be employed by the Respondent.

Section 13 of the Unfair Dismissals (Amendment) Act, 1993 stipulates as follows: “13. Employment Agencies

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.” 

In these circumstances, I am satisfied that although the Complainant was recruited through an agency, the correct respondent for the purpose of the unfair dismissal legislation, as per Section 13 of the Unfair Dismissals (Amendment) Act, 1993 is the Local Authority, the Respondent named in the Complainant’s WRC complaint form.

Taking all matters into account I find that the Respondent is the correct respondent for the purpose of the Unfair Dismissals Act, 1977.

The Respondent submits that, notwithstanding its position regarding the employment status of the Complainant, he had no contract of employment with the Respondent and was not considered to be an employee.

The Respondent submits that, following the lifting of the recruitment embargo in the public service the Respondent undertook to produce a Work Force Plan for the Library Service. During the analysis of staffing requirements, the need for a full-time library attendant post in the Complainant’s place of work on a permanent basis was identified. In addition to regular library attendant duties, it was considered appropriate that the holder of the post would have certified training in security. The Respondent submits that this practice is currently working very successfully in the Respondent’s other main branch libraries. In line with recruitment in the public sector for all permanent posts, sanction was sought from the Department of Housing, Planning and Local Government. Upon receipt of this sanction, all applicants must come through an application and interview process, and must meet all of the eligibility and qualification criteria required in order to be considered for the post. As is the case for all positions within the Respondent, advertisements issue to all staff and are detailed on the Respondent’s website for the general public to view and make an application where appropriate. The Respondents submits that the Complainant was not dismissed unfairly or otherwise. The Complainant was a client of the named Recruitment Agency. He was not an employee of the Respondent. He was and remains free to apply for any and all of the permanent posts advertised by the Respondent. The Respondent believes that the terms of the Unfair Dismissals Act do not apply to the situation outlined.

Evidence of Ms A, Senior Executive Officer

Ms A stated that a requirement for a position of Facility Officer was identified. Following a number of incidents, it was decided that the responsibilities of the position would primarily relate to ensuring security at the door but would also include library attendant’s duties. Specific security qualifications were deemed necessary for the eligible candidates. Ms A, post-hearing provided copies of two “Near Miss Report” forms dated 18th April 2018 and 13th July 2017. The forms outline details of two incidents. In her direct evidence, Ms A stated that the Complainant was informed of the recruitment for the position by way of email dated 16th December 2015 (3:50pm). The email was addressed to “AllStaff” and at the hearing Ms A confirmed that the Complainant did have a work email address and would have been included in the list. Ms A submitted that the Complainant did not apply for the post. However, in her post-hearing submission dated 1st May 2018 Ms A contradicted her statement and stated the following:

“Evidence that [the Complainant] was included in the ‘AllStaff’ mailing address. As previously advised in our submission [the Complainant] was not considered to be an employee of [the Respondent] and on that basis he would not have been allocated a “AllStaff” mailing address. This would be in accordance with normal governance criteria where individuals are not on the payroll of [the Respondent] and to ensure appropriate data governance.”

At the hearing Ms A submitted that recruitment process took place and in February 2017 a successful candidate was appointed to the permanent post of Facilities Officer with effect from 3rd April 2017. In her email of 1st May 2018, Ms A noted: “As advised at the hearing this post was filled prior to [the Complainant] taking up his role in the library so therefore would not have been relevant to him. In addition as advised he did not meet the specific eligibility criteria of security training so would not have been eligible to apply for the post.”

Ms A confirmed that the Complainant had access to the Respondent’s training. However, it is considered to be a “set menu” and security training is not a part of upskilling program for the staff. Ms A confirmed that the Complainant had unblemished record with the Respondent.

Evidence of Mr. B, the Area Manager

Mr. B stated that security issues evolved over time and for that reason there was a need to have a trained person recruited. In cross-examination he confirmed that currently only one person has the required qualification but in the event of this person’s absence the Local Authority would arrange a replacement. Mr. B reiterated on a few occasions that he has no role in HR matters and he has no authority to give assurances in respect of the permanency or pension-ability of the Complainant’s position. However, he confirmed that he was asked by the HR Department to approach the Complainant and discuss his move to another location in 2015. He also confirmed that he met the Complainant to discuss the matter of the delay in payment of his wages.

The Complainant submits that he was engaged by the Respondent on 4th November 2010. He was moved to another location (library) in February 2015. The Complainant submits that he worked 36 hours a week over 5 days. Records of his hours of work were kept and forwarded to the named Recruitment Agency by the Respondent for payment. The Complainant submits that he was required to attend training courses organised and paid for by the Respondent such as IT training, fire warden training and ‘dealing with aggressive members of the public” training. He had his work email address, albeit he noted the difficulties he had accessing it, and a car-park fob. The Complainant claims that he was integrated into the library staff, which worked as a team. He attended staff events such as Christmas party. The Complainant submits that he was given verbal assurances by Mr. B in relation to the permanency of his position and, as he had a friendly relationship with him he trusted him. He understood that his position was permanent.

The Complainant noted that he met Mr. B in July 2016 and asked for clarification in respect of his position. He claims that he has never had an appraisal /assessment meeting previously but was called to one the day after the meeting with Mr. B. At this meeting, his line manager pointed out that he could improve on cleaning, to which he noted that this is not part of his job. He was then told to work on his time-keeping. The Complainant noted that there had been no complainants or warnings in relation to his performance.

The Complainant claims that he had no knowledge of the Facility Officer position. He was informed by the Recruitment Agency that his engagement was being terminated. He found out, informally, that another person would be appointed to fill his position.

The Complainant submits that had he been aware of the position and the security qualification requirement he would have completed the required training.

The Complainant submits that he was unfairly dismissed by the Respondent and seeks re-engagement and/or compensation.

In reply to the Respondent’s post-hearing submission the Complainant’s representative raised the following points:

The reports (Near Miss Reports) provided by the Respondent relate to the incidents dated on 16 April 2018 and 12 July 2017. Both incidents occurred after the Complainant was dismissed on 17 March 2017 and new appointment of Facilities Officer was made in or around April 2017. Consequently, these reports cannot be respectfully taken into consideration as the dates are after fact.

ln reply to the Respondent's submission that there was a "requirement for staff with a security qualification was considered appropriate", the Respondent has failed to provide evidence of comparable employees holding the post of Library Attendant with the required "security qualification". Consequently, this is a general statement and cannot be respectfully considered as a fact.

The Respondent's Briefing Document for the position of Library Assistant with a closing date of September 2017 does not specify any such security training requirement. This is in direct conflict with the Respondent's oral evidence at the WRC hearing on 24 April 2018 and the submission of 1 May 2018.

In reply to Respondent's submission it appears that there is a clear conflict of evidence. On one hand it is submitted that the Complainant was provided with a work email address which gave him access to the internet and the Council's website where all posts are advertised. However, the Respondent goes on to state that the Complainant did not have access to the "All Staff mailing address". At the hearing the Respondent gave very clear evidence that the Complainant had access to the "All Staff mailing address" and was notified of all internal vacancies.

Despite direct reference both at the hearing and in the Respondent's written submission of 24 April 2018 to a Work Force Plan for the Library Services, no such plan has been produced.

ln reply to the Respondent's submission that the post was filled prior to the Complainant taking up the role in the library, the Complainant submits the following:

There is no evidence of the Recruitment email attached to the Respondent's submission.

The submissions that the position was filled prior to the Complainant taking up the role at                                   the Library is factually incorrect for three reasons:

1. The Complainant commenced employment with the Respondent on 4th November 2010.

2. While at all times since 4th November 2010, the Complainant was employed by the same entity, he was transferred to the Library in or around February 2015. This is 10 months prior to the Respondent's submission that the post of Facilities Officer was advertised on 16 December 2015.

3. lt is clear from the job description of the Facilities Officer provided by the Respondent at the WRC hearing that it is not the same or any way similar to the role of Library Assistant, as per the job description provided by the Complainant at the WRC hearing and the Briefing Document for the position of Library Assistant subsequently advertised in August 2017.

The Complainant therefore submits that the Respondent failed to discharge the burden of proof placed on it by Section 8 of the Act. 

The Unfair Dismissal Act, 1997 stipulates that:Section 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.”

Section 6(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. There is a considerable divergence between the Respondent’s and the Complainant’s respective accounts of the events. I note that some of the Respondent’s evidence given at the hearing is contradicted, in some instances completely, by the post-hearing written submission and supporting documentation. The parties confirmed that the Complainant’s engagement with the Respondent started on 4th November 2010. The evidence before me shows that the Complainant was informed in February that his engagement with the Respondent would be terminated on 17th March 2017. The parties confirmed that there has been no disciplinary or performance issues in respect of the Complainant. The Respondent confirmed that the Complainant had an “unblemished record”.

The Respondent submitted that, following a number of incidents it was established that there is a requirement for a Library Attendant to hold a security qualification/licence. In support, the Respondent delivered copies of two “Near Miss Report” Forms outlining two separate incidents. I note that the incidents occurred on 16th April 2018 and 12th July 2017. Therefore, both incidents took place after the recruitment campaign and after the Facilities Officer was appointed. The Respondent presented also “Briefing Document, Application & Selection Process. Facilities Officer”. The Respondent confirmed at the hearing that the titles Facilities Officer, Library Assistant and Library Attendant are interchangeable and refer to the same position. The document outlines that the Respondent has “…a vacancy for a permanent position of Facilities Officer. The successful candidate will be expected to carry out a range of duties in a responsible position ensuring safety and facilities for staff and members of the public...” The document lists the duties of the successful candidate and specifies that each candidate “…must, on the latest date for receipt of completed application forms: … * hold a current Private Security Authority licence…” Closing date for the completed application forms was 5th January 2016.

In their evidence during the hearing the Respondent presented a copy of email dated 16th December 2015 (3:50pm) sent to “AllStaff” informing them of this recruitment opportunity. Ms A, on behalf of the Respondent confirmed that the Complainant was issued with a work email address and therefore would have been included in the group “AllStaff”. However, she noted that he chose not to apply for the position. On the Adjudicator’s request the Respondent was to provide evidence from their IT Department verifying whether or not the Complainant was included in the AllStaff list. Subsequently, Ms A contradicted her earlier statement and wrote to the WRC stating: “…[the Complainant] was not considered to be an employee of [the Respondent] and on that basis he would not have been allocated a “AllStaff” mailing address. This would be in accordance with normal governance criteria where individuals are not on the payroll of the Council and to ensure appropriate data governance.” The Respondent provided also a copy of “Approved Officer’s Order” in respect of the appointment of the Facilities Officer. The documents states that a successful candidate was appointed to the permanent post of Facilities Officer with effect from 3rd April 2017. Although the Respondent did not provide evidence that the appointed person holds the required licence, the Respondent argued that the candidate would not have been successful if he/she did not meet the required criteria.

The Respondent argued that the Complainant did not meet the specific eligibility criteria of security training so would not have been eligible to apply for the post. In addition, the Respondent submitted also that the post of Facilities Officer was filled prior to the Complainant taking up his role in the library so therefore would not have been relevant to him. I find this statement incorrect for a number of reasons. Firstly, it was confirmed by the parties that the Complainant’s engagement with the Respondent commenced on 4th November 2010. The email in respect of the recruitment was circulated on 16th December 2015, over five years later. Secondly, the Briefing Document in relation to the position of the Facilities Officer in no way implies that the position relates only to the library services of the Respondent. To the contrary, it clearly outlines that “The successful candidate will be expected to carry out a range of duties in a responsible position ensuring safety and facilities for staff and members of the public using [the Respondent’s] premises.” The Respondent premises are not limited to the library in question. Therefore, whether or not the Complainant took up his role in the library at the time is not relevant. In relation to the eligibility criteria, the Complainant confirmed that he does not hold a PSA licence. The Complainant submitted that he would have undertook the required training, even at his own expense had he been made aware that there is a change in requirements in respect of his position. The matter of the eligibility criteria is one I would have some concerns about. The Respondent submitted that the role of the Library Attendant, which the Complainant held evolved over time. In their letter to the Complainant’s representative Ms A, on behalf of the Respondent states: The Library Work Force Plan has clearly identified the need for a full-time library attendant post at the [named] Library. The duties of this post are extensive and have evolved over the years. In addition to regular library attendant duties, there is now a requirement for the holder of the post to have certified training in security. This is necessary in order to deal safely with the range of public behaviours which we deal with in our main branches. This practice is working very successfully in other main branch libraries. It is therefore imperative that the Library Attendant post at [named] Library be filled by an individual with certified training in security.”

The letter lists the duties of Library Attendant as follows:

·         Shelving and stock on a daily basis

·         General maintenance of building and immediate exterior

·         Reporting problems to Library manager

·         Opening and closing of building as appropriate

·         Awareness of alarm system security cades and procedures

·         Be available for emergency alarm call out

·         Appropriate use of cctv

·         Desk duties

·         Helping members of the public with internet access

·         Helping to locate books and DVDs for library users

·         Maintaining orderly use of the library

·         Representing the library service through all contact with the public

The Briefing Document in respect of the Facilities Officer on the other hand list the following:

The successful candidate will be expected to:

·         Present at all time, a smart, alert, visible and commanding presence at [the respondent’s] premises

·         Report and records all matters of concern for the purposes of service and incident management

·         Write complete and accurate incident reports and take appropriate action as required on all reports passed on at the commencement or during duty

·         Monitor alarms and Facilities CCTV footage

·         Ensure the safety of our buildings and assets by carrying out all duties in full adherence with [the Respondent] requirements

·         Dealing with conflict as it arises in accordance with specified procedures

·         Greeting, assisting and directing members of the public visiting our premises

·         Perform any other duties that maybe assigned from time to time

Regrettably, the Respondent did not provide a copy of the Work Force Plan and its recommendation in respect of the security aspect of the Library Attendant.

I note that in September 2017 the Respondent ran another recruitment campaign, this time for the position of Library Assistant. “Briefing Document” in respect of that role lists the responsibilities/ duties of a Library Assistant as follows:

Duties will include but are not limited to:

·         Front-line library service duties at a busy public library desk;

·         Responding to customer queries, including information and requests;

·         Operating existing and future IT systems - word processing, spreadsheets, database,

library systems, e-mail and internet;

·         Assisting the public in using the public internet, self-service facilities and other

Library IT equipment;

·         Assisting in the promotion of the library service through an active role in the

organisation and delivery of events - e.g. book clubs; storytelling, class visits,

community events & exhibitions;

·         Branch Relief Work- cover in other locations as required to maintain library branch

network opening hours during periods of holiday leave, sick leave, etc.;

·         General clerical and administrative duties relevant to the Library Service, e.g.

processing and RFID tagging of new library stock, cash management, Health &

Safety checklist, branch statistics, etc.;

·         Any other duties that may be assigned as part of the overall functioning of the

Library Department.

Having reviewed the duties, as listed in the three documents I find that it is implausible for the Respondent to claim that the position of the Facilities Officer and the Library Attendant are the same, the only difference being the PSA licence. It is my opinion that the Library Attendant position, as advertised in September 2017 closely resembles the position held by the Complainant prior to his dismissal. I therefore cannot accept the Respondent contention that there was a requirement for the Library Attendant to hold a valid PSA licence and that, due to the fact that the Complainant did not have the required licence he could not remain in his job.

In the circumstances, I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is well founded.

In respect of mitigation of loss, the complainant submits some documentary evidence of seeking other various roles for employment. Following his dismissal, in March 2017 the Complainant undertook a training on CV drafting and interview techniques. He also completed Manual and Computerised Bookkeeping and Payroll Training (Sept-Dec 2017). The Complainant submitted evidence confirming that he has applied for some 13 positions between July 2017 and April 2018. However, he claims that he has not found alternative employment. I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “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”. It is clear that there is a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. I also note the decision in Burke v Superior Express Limited UD 1227/2014 where the EAT held that the standard required is a high one. Taking all into consideration, I am not convinced that the Complainant’s efforts are on the level required to fully mitigate his loss. Therefore, I must find that the Complainant has not fully endeavoured to mitigate his loss and I take account of that in making my award.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Act. In accordance with the provisions of Section 7 of the Act, I consider that the appropriate redress in all the circumstances of the present case is compensation. 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 Acts.

On the basis of my findings above I declare the complaint is well founded. I consider it fair and equitable in all of the circumstances to direct the Respondent to pay the Complainant compensation of €18,000 which is approximately nine months’ salary,

Key Words:Unfair dismissal, agency worker