Complainant

Respondent

Anonymised Parties

A General Operative

A Distillery 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-00027728-001

15/04/2019

The Complainant is a general operative.

The Respondent is a distillery business.

The Complainant commenced working at the distillery on the 20^th of November 2017.  She ceased working at the distillery on the 7^th of January 2019.

The Respondent’s made a preliminary application namely that the Complainant’s case was fundamentally misconceived.  The Respondent submitted that in fact and in law the Complainant was simply never an employee of the Respondent.  The Complainant was an employee of either one or two recruitment agencies both of whom were engaged by the Respondent to provide agency workers on assignment to the Respondent’s manual packing lines. 

The Complainant explained that she was paid by an Agency when she started working at the distillery in 2017 and in May 2018 she received a contract of employment from the Respondent.  She signed this contract and return it to the Respondent.

On the 5^th of December 2018 she was informed by the Respondent that business was slow and twelve people on contracts would be let go from the employment on the 5^th of December 2018. 

On the 2^nd of January 2019 the Complainant continued working for the Respondent. 

The Complainant explained that on or around the 7^th of January 2019 she was called into an office by one of the Respondent’s managers and informed that she was being let go.  The Complainant rejected that she tendered her own resignation. 

The Complainant submitted that at all times she was a direct employee of the Respondent by virtue of a contract of employment entered into between her and the Respondent on or about the 2^nd of May 2018.  She confirmed that she submitted satisfactory references and that pre-employment checks were carried out by the Respondent. 

In the alternative the Complainant argued that Section 13 of the Unfair Dismissals (Amendment) Act 1993 applied. 

The Complainant submitted that the facts of the case met the criteria of dismissal set out in the definition section of the Unfair Dismissals Act. 

She also submitted that Section 14 (1) of the Unfair Dismissal Act and the Code of Practice set out in S.I. 146 of 2000 was not complied. 

Her case was that she was unfairly dismissed with blatant disregard to any fair procedures.

The Respondent admitted that while the Complainant’s engagement within the Respondent company did come to an end, it submitted that the Respondent was a stranger as to whether and indeed if for the purposes of a claim under the Unfair Dismissals Act the Complainant’s employment ever came to an end with either of the recruitment agencies in which she was employed.

The Respondent submitted that it was a stranger in law and in fact to any purported dismissal.

The Respondent denied that the Complainant was ever an employee of the Respondent.  The Respondent explained that the Complainant was assigned to the distillery as an agency work by a recruitment agency (Recruitment Agency 1). 

The Respondent confirmed that the Complainant was offered a full-time position by the Respondent on the 7^th of May 2018.  This was a conditional offer upon the Complainant supplying employment references and subject to the Respondent receiving satisfactory references and a pre-employment check.   The Complainant failed or neglected to supply the Respondent with the required information and the offer of employment was rescinded on the 4^th of September 2018.  The Respondent confirmed this in writing to the Complainant.  The Respondent submitted that the Complainant remained as an agency worker and there was no change to her employment status throughout her time with the Respondent. 

The Complainant was one of several agency workers assigned to the manual packing bottling lines in its packaging and supply chain facility.  The Respondent had no input in the selection, retention or assignment of the Complainant.  The Complainant’s remained engaged by the Respondent as an agency worker employed by Recruitment Agency 1 until the 5^th of December 2018 when the Respondent’s production on its manual packing lines ceased.  Its requirement for temporary labour/agency workers ended. 

At that point the Respondent informed the recruitment agency that it no longer required its support in terms of the provision of agency workers due to a falloff in production requirements.  The Respondent clarified that it had not dismissed the Complainant nor any of her co-workers who were employed by the recruitment agency. 

In January 2019 the Respondent entered into an exclusive contractual arrangement with a different supplier for agency workers namely Recruitment Agency 2.  The Complainant went from being an employee of Recruitment Agency 1 to Recruitment Agency 2. 

The Respondent submitted that it was a stranger in fact and in law to what arrangement if any was implemented between the two recruitment agencies regarding the changeover of employment of the Complainant. 

On the 2^nd of January 2019 Recruitment Agency 2 assigned the Complainant to the distillery as an agency worker.  The Respondent required agency worker support until the 11^th of January 2019. 

The Complainant did not report for duty following the 7^th of January 2019.  Recruitment agency 2 sent a replacement for the Complainant to meet demand for the remainder of the week.

As regards the Complainant’s reliance on Section 13 of the Unfair Dismissal’s (Amendment) Act 1993 the Complainant submitted that this represented a fundamentally different claim to that submitted on the 15^th of April 2019 and it submitted that that claim was not properly before the WRC. 

Without prejudice to same the Respondent submitted that the Complainant remained an employee of Recruitment Agency 2 until the 3^rd of May 2019.  The Complainant requested to be cleared from the payroll of Recruitment Agency2 in Week 18.  The Respondent submitted that the Complainant resigned from her employment with Recruitment Agency 2. 

I have considered the evidence presented to me both verbally and in writing prior to and post the hearing. 

The claim lodged by the Complainant was that of unfair dismissal.  The complaint was lodged on the 15^th of April 2019. 

I note that the Complainant was made an offer of employment on the 7^th of May 2018.  The offer made to the Complainant stated that the offer of employment is conditional on the following:

              -     “We receive satisfactory references for you”

-          “Our pre-employment checks for you are satisfactory”

-          “You accept our offer within two weeks”

I was also furnished with a letter dated the 4^th of September 2018 from the Respondent to the Complainant.  The Complainant confirmed she received this.  This letter set out how the Respondent was pleased to make her an offer of employment subject to certain conditions being satisfied.  The letter went on to state that it regretted to inform the Complainant that she had not met all the requirements for confirmation of the role on offer.  It concluded that as a result the Respondent was no longer able to proceed with the appointment and therefore withdrew the offer of employment with immediate effect.  The Complainant took no action on foot of this letter. 

I found the Complainant to be a truthful witness.  She confirmed that she understood the difference between a direct employee and an agency employee.  The Complainant confirmed that she was an agency employee. 

I find that the Complainant’s employment was not terminated by the Respondent.  She was not an employee of the Respondent.  The evidence submitted to me was that her employment was not terminated by the Respondent nor recruitment agency she was an employee of.  The evidence is that at her request she ended her engagement with Recruitment Agency 2 coinciding with her obtaining new employment elsewhere. 

I find the case not well founded.

Agency. Termination of Employment.