ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015120
Parties:
| Complainant | Respondent |
Anonymised Parties | A Warehouse General Operative | A Medical equipment supplier |
Representatives |
| Cathy McGrady BL Sarah Browne Solr Mason Hayes & Curran |
Complaint:
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-00019772-001 | 14/06/2018 |
Date of Adjudication Hearing: 27/08/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 14th of June 2016) issued within six months of his dismissal or termination, I am satisfied that I have jurisdiction to hear the within matter.
This matter must be read in conjunction with the Unfair Dismissal Claim set out in Adjudication Reference ADJ 14942. The Complainant herein has brought two separate UD claims against two separate entities in circumstances where the Complainant might be considered an Agency Worker who had been in a placement with an End User prior to the alleged Dismissal. I heard evidence from the Complainant, the Employment Agency and the End User at the same hearing and it is for this reason that the two Decisions should be read together. The Respondent in these proceedings (ADJ 15120) is a Medical Supplies Distribution Company (IC Ltd) who engaged the Complainant through an Employment Agency (SR Ltd) – the Respondent named in ADJ 14942.
An Agency worker is someone who is employed by an employment agency under a Contract of Employment which will provide that the worker can be hired out to a third party – the “hirer” or “end user”. The agency worker will work under the supervision of and at the direction of the said third party end user. Generally, it is the employment agency which employs the agency worker and assigns the agency worker to work for a particular end user. On the face of it, the Employment Agency will generally considered to be the Employer.
This matter comes before the Adjudication Services on foot of a workplace relations complaint form dated the 14th of June 2016 and has been initiated in consequence of the decision of the Respondent IC Ltd to terminate the Complainant’s engagement within IC Ltd which had operated for the previous eighteen months.
The fact of Dismissal is very much in dispute in circumstances where the Respondent End User IC Ltd understood that the Complainant would be offered an alternative position of employment by the Employment Agency SR Ltd which the Respondent IC Ltd believed to be the Employer.
It is noted that the Employment Agency SR Ltd also disputes the fact of Dismissal and confirmed that the Complainant remains on it’s books up to the date of hearing. The Complainant says it has no reason to trust the Employment Agency and considers himself to have been dismissed.
All three parties opened up written submissions although only the two Respondents provided me with copies of their Submissions. I heard the oral evidence from various witnesses as well as the Complainant. All evidence was tested.
The Complainant understood that his rights were protected by reason of Section 13 of the Unfair Dismissals Act of 1993 which states :-
“13.- 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 party (whether or not the third person is a party to the contract and whether or not the third party 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-
- The individual shall be deemed to be an employee employed by the third person under a Contract of Employment,
- If the Contract was made before the commencement, it shall be deemed to have been made upon such commencement, and
- Any redress under the Principal Act for Unfair Dismissal of the individual under the Contract shall be awarded against the third party.”
Summary of Complainant’s Case:
The Complainant gave his own evidence and was cross-examined. In addition the Complainant read out his own Statement. The Complainant believed his employment with the Respondent IC Ltd had been Unfairly terminatedon or about the 22nd of May at which time the Complainant was returning from a short period of Sick Leave. The Complainant was unsure who his Employer was and brought identical claims against the Employment Agency and the end user. |
Summary of Respondent’s Case:
This Employer was adamant that it was not the Employer and that the relationship between the Complainant and this Respondent came to a natural end as the economic requirements of the Workplace changed over the course of 2018. This Respondent was not a party to the Contract of employment held between the Agency and the Complainant (a copy of which the Complainant said he had not had sight of either). |
Findings and Conclusions:
I have carefully considered the evidence adduced. To fully understand what happened in May of this year I must look at the parties understanding of the nature of their respective relationships prior to that period. I have no doubt that the Complainant knew that he had been placed with IC Ltd by operation of an Agency agreement with SR Ltd. I accept that that the Complainant was interviewed for the position by a representative of IC Ltd in and around October of 2016 but that this did not alter the nature of the relationship. The Complainant confirmed in evidence that for the duration of his employment he was acutely aware of the fact that he was not a permanent member of staff. Indeed, his evidence was that he would have conversations with Mr. H wherein he would ask to be made permanent and Mr. H would have said to him that he hoped that might happen at some point in the future. I am satisfied that this did not happen and that the Complainant continued to be an Agency worker with IC Ltd for the duration of the eighteen or nineteen months that he worked there. At the start of May 2018 the Complainant was involved in a road traffic accident which left him out of the workplace for a three week period. The Complainant was not entitled to sick pay for this period. The evidence tendered was that for the period in the run up to May 2018, IC Ltd was experiencing financial difficulties. I was provided with a financial statement which does tend to show that there was considerable differences between projected sales and actual sales in the early months of 2018. The Company was not operating at a loss but was not operating as well as expected. The Complainant stated in evidence that he would have been aware that sales were not as good as they might have been but that he had no reason to believe that his position as warehouse operative was in jeopardy. The evidence presented was that the Complainant’s Supervisor was in contact with the Employment Agency SR Ltd to advise that there were ongoing difficulties and that the Complainant’s position was no longer tenable as cut backs were required. There are no specifics as to times and dates. I note that the Complainant was the only Agency Worker on site. For reasons unexplained to me, the fact that his job had come under scrutiny was never made known to the Complainant. I fully accept that the Complainant was a very good Employee who had worked well in the End User’s site and the lack of explanation by either the Supervisor or Manager in IC Ltd or Mr KL or Ms COR in SR Ltd was most unfair to the Complainant who had no inkling that his position was no longer going to be required. After three weeks on sick leave the Complainant was certified as fit to return to the workplace and fully expected, as he had heard nothing to the contrary, that he would be returning to his warehouse position in IC Ltd. In fact, the Complainant was called into a meeting at the SR Ltd premises where he was met with the Branch Manager COR. It was at this meeting that the Complainant was told that he was not returning to SR Ltd. Having considered both versions of the evidence, I accept the Complainant’s evidence that COR did not appear to have understood how long he had worked with IC Ltd for. I also accept that Complainant’s evidence that COR was vague about proposed alternative employment, place of employment and hours of employment. It is worth noting that there is no written offer of alternative employment provided on that days or any subsequent day and it was conceded by COR that any alternative offered was offered at a lesser rate of pay (and not the hugely enhanced rate of pay suggested in submission). I do not blame the Complainant for holding out to be returned to IC Ltd. As far as he was aware SR Ltd had sent a replacement in the period of time that the Complainant was out on sick leave. It is now known that this replacement was only sent there on an ad hoc basis and within two weeks was no longer required. On balance, I am satisfied that the position in IC Ltd was no longer required by reason of financial difficulties arising over early 2018. The termination of the position was a cost saving decision and whilst hugely unsatisfactory from the Complainant’s point of view, is permissible by law and is one of the many advantages conferred on the end user in an Agency situation. IC Ltd did not dismiss the Complainant who continued from the 22nd of May 2018 to be an Employee of the Employment Agency SR Ltd. On balance I am further satisfied that SR Ltd did not actively and appropriately engage with an Employee who had an unblemished work record and who had recently come back from a short period of sick leave. There was to my mind a complete failure to see the situation from the Complainant’s perspective and a complete failure to ameliorate the situation. There is no evidence to suggest there was an active attempt to find alternative employment for the Employee. The Employer SR Ltd simply washed their hands of it’s obligations by suggesting that it was the Complainant who was being stubborn and obdurate and refusing to consider alternatives. I have no evidence of what alternatives it is purported were put to the Complainant at the time and it is conceded that the alternative contained in the submission is factually incorrect – and in any event the Complainant rejects that any alternative offer was made. It appears to me that the limited email communication does not bear witness to any attempt by this Employer to perform it’s duty of care to the Employee. I note that the Contract of Employment allows for no liability attaching should it fail to offer opportunities but I do not accept that this is covered in this situation where the Complainant was just not fully engaged with one way or another. In the circumstances, I accept that the Complainant lost trust in the Employer and I accept that the Employee was in all the circumstances entitled to consider the conduct of the Employer to be such that the Employee was entitled to terminate his employment and it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997). The Employment was terminated by the act of issuing a Workplace Relations Complaint Form on the 26th of May 2018. The Complainant was therefore Constructively dismissed. In making this finding, I am mindful of the fact that the Complainant was not legally represented and was incorrectly drawn to the provision of Section 13 of the 1993 Act which had no application in these circumstances. The Complainant was not dismissed by the end user and the Complainant was not initially dismissed by the Employment Agency. The Complainant considered himself to be Constructively Dismissed by reason of the conduct of the employment Agency and his resignation came in the form of the Workplace Relations Complaint Form. I would accept that the Complainant might be considered to have been premature in making a Complaint to the WRC however, the Employer SR Ltd did not at any time between that date and the date of the hearing try to engage with the Employee despite accepting at all times that it was the Employer |
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.
The Complaint made against the Respondent in these proceedings IC Ltd who is the end user in an Agency agreement must fail. I therefore dismiss the claim under the Unfair Dismissals Acts, 1977 – 2015 |