Complainant

Respondent

Anonymised Parties

Agency worker

Employment agency

Representatives

Self

 Philip O’ Gorman IBEC

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-00026268-001

13/02/2019

The Complainant was engaged by the Respondent on the 24^th of October 2016. 

The Complainant worked as an agency worker healthcare assistant placed with a customer of the Respondent. 

Her claim is unfair dismissal.  She set out that the date of dismissal was the 26^th of October 2018. 

The Respondent refuted the claim in its entirety.  Its case is that no dismissal had ever taken place. 

The Respondent is an international provider of healthcare staffing services.

It accepted that despite being the employment agency placing the Complainant with a health service provider (the “hirer”), it was the employer of the Complainant.  It explained that as per the joint terms and conditions of employment there was no obligation for the Complainant to accept any assignment offered by the Respondent and the Complainant could not be sanctioned for non-acceptance of assignments. 

On the 22^nd of October 2018 the Complainant accompanied a group of service users with intellectual disabilities on a kayaking trip.  During this trip she left her assigned workplace without authorisation.  This was logged as an incident by the service hirer. 

The hirer corresponded with the Respondent.  It outlined its desire that the Complainant would no longer be placed at their site.  Its case was that the Complainant did not comprehend the seriousness of her actions.  This was unacceptable to the hirer.  They set out that they were no longer able to continue with the Complainant’s placement at their service.  The Complainant responded to the hirers position however no change was made to the hirer’s decision because of this response. 

The Respondent then engaged in a lengthy process to place the Complainant in an alternative location with the same hirer.  This included offers of various shifts in the same geographical area between the 5^th of November 2018 and the 31^st of January 2019.  Many of the offers were declined, however several shifts were worked by the Complainant during this time including a shift in January 2019.

In November 2018 they received an email from the Complainant looking for verification of her services and for verification of vaccinations.  They considered this as an indication that the Complainant was looking for a new job or moving on.

The manager spoke with the Complainant on the 4^th of February 2019.  The Complainant advised her she had taken up another job elsewhere.  The telephone call was quite heated.  The Complainant alleged that the manager was bullying her. 

In summary, the Respondent disputed the claim in its entirety.  It disputed that a dismissal took place.  Its case was that the Complainant remained on “their books” in a continuing employment relationship with the Respondent.  It submitted that the Complainant is deemed to be a continuing employee during periods between assignments. 

The Respondent never provided her with any notice of termination.  The Respondent explained that the only reason the Respondent ceased offering employment opportunities to the Complainant was that on the 4^th of February 2019 the Complainant verbally advised a member of its staff that the Complainant had obtained employment elsewhere and asked the Respondent to refrain from contacting her further.  She did not formally resign her employment.

The Complainant alleged that she was unfairly dismissed by the hirer and the Respondent.  Her complaint against the hirer was submitted under ADJ00011960.

The Complainant’s case is that on the morning of the 22^nd of October 2018 she was assigned a task due to the ill health of her colleague who had to go home.  She had received no instructions as to what the task was.  All she received was instructions to do the task.  She was handed keys of a car and told to take six clients to a kayaking activity.  This was to be their final kayaking session.  They had completed five sessions beforehand.  The Complainant and the clients were driven to the canal area where the kayaking session was to take place.   They were dropped off at the side of a road and the driver returned to the Complainants normal place of work. 

The Complainant explained that she was given no information as to what to do.  The clients told her to follow them down a path to the canal bank and outside toilets.  There she assisted them getting into their wet gear.  She met with three kayaking instructors waiting to take the clients to their kayaks.  One of the female instructors suggested to the Complainant that she go for a coffee as the clients were going to be kayaking for two hours on the canal.  The Complainant felt she couldn’t leave the clients.  However, the instructors insisted that she should go somewhere as it was very cold and there was no place for her to wait.  She was advised to go and get her car. 

The Complainant waited for the six clients to leave her sight on the canal.  She made her way back to her workplace where she picked up her car and returned to the canal where she waited until her clients came back on the kayaks.  This was around two hours later.  Once they returned she assisted them in getting out of their wet gear.  The clients received their kayaking course certificates.  There was a delay of about twenty-five minutes before the bus came to take them all back to the base. 

The Complainant’s case is that this was her first time at this activity.  She had no car and no company phone.  She was not informed on what was involved or prepared for this activity.  She was adamant she would never leave the clients unattended or unsupervised.

The Complainant then explained that she was bullied to go into a meeting with the manager of the centre.  She did not want to meet her without her union representation.  She agreed to go ahead with the meeting under duress. At the meeting the Complainant explained different incidents to the manager.   She said the manager wrote nothing down.  She said the manager didn’t want to know what happened at the kayaking incident. 

The Complainant was very upset when she got the phone call from her line manager to state that she would no longer be placed in the centre.

She said that she accepted work for the following two weeks, but this work was cancelled.  She felt that she was “blocked” in that area. 

She admitted she did do a “few shifts” in the local general hospital and in a local Rehab centre. 

The Complainant was traumatised over what had happened to her.  She did take some hospital shifts but these were twelve and a half hour shifts.

She said she did the best she could on the day.  She felt that she was responsible for too many clients.  She had consulted with the three instructors. 

Her evidence was that she was unfairly treated.  Her line manager met her and said they would offer her more work.  She felt she was blocked from the type of work she liked and was her preference to do.

The Complainant didn’t claim she resigned.  She just found alternative work with another provider. 

Section 13 of the Unfair Dismissal (Amendment) Act 1993 specifically provides that for the purposes of the unfair dismissal legislation, the hirer will be deemed to be the agency worker’s employer and is the correct respondent in any claim for Unfair Dismissal. 

S13 sets out

“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.”

I find that for the purpose of this claim of Unfair Dismissal that the Respondent was not correctly named as Respondent as it is not the Complainant’s employer. 

The complaint is not well founded. 

Section 13 of the Unfair Dismissal (Amendment) Act 1993.

Dispute.  Correct employer.  Agency Worker.   Unfair Dismissal.