Complainant

Respondent

Anonymised Parties

Agency Worker

Health Service Provider

Representatives

 Self  

 HR

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-00026363-001

19/02/2019

I was provided with evidence from the Complainant about a separate incident to the subject matter of this complaint which took place in 2017.  This was an incident with a vulnerable adult which she witnessed.  I advised the Complainant that she should process this information through the established internal channels or report the matter to the Gardai. 

The Respondents case is that it was advised of an incident in October 2017 and this was handled by management once it was reported to them.  It denied that the Complainant’s complaint in that matter was swept under the carpet. 

The Respondents case is that they were not the employer of the Complainant. 

It confirmed that the Complainant was placed with them as an agency worker.

It confirmed that it was advised of an incident in October 2017 which was investigated once reported to it.  The Complainant was not satisfied with the outcome of that investigation.

The incident the subject matter of this complaint was that 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 with the agency. 

The Respondent outlined its desire with the agency that the Complainant would no longer be placed at this particular site.  Its case was that the Complainant did not comprehend the seriousness of her actions.  This was unacceptable to them.  They set out that they were no longer able to continue with the Complainant’s placement at their service site. 

The Complainant responded to their decision through email. 

No change was made to the decision.

The Complainant alleged that she was unfairly dismissed by the Respondent and the agency for which she worked.  Her complaint against the agency was submitted under ADJ00019796.

The Complainant’s case is that she was placed by her agency at the Respondents facility.  She was working there for several years.

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.  Five sessions had already taken place 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 facility centre. 

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 service centre. 

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 Respondents service centre where she worked.  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 she had experienced 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 agency line manager to state that she would no longer be placed in the centre.

The Complainant was traumatised over what had happened to her.  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. 

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 this claim of unfair dismissal that the Respondent is the correctly named Respondent and is the Complainant’s employer. 

No claim was made by the parties that the reporting of the 2017 incident was a protected disclosure. I proceeded with my investigation.  I wasn’t provided with any evidence to link the subject matter of this complaint with the report made by the Complainant in 2017. 

To bring a claim of unfair dismissal an employee must have been ‘dismissed’ within the meaning of the Unfair Dismissal Act 1977 (as amended).

Dismissal is defined in s. 1 of the 1977 Act as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

My first task is to decide if there was a dismissal in this case.

The evidence of both parties is that the Complainant ceased working at the Respondents service centre at the Respondents request. 

I have reviewed the wording of the letter from the Respondent 25^th October 2018.  It stated

‘We are no longer in a position to continue with [the complainant’s] placement at the [name of service centre].

The evidence provided to me was that the Complainant was notified of this decision and her recruitment agency began a process to place the Complainant in an alternative location as per their agreement with her.  The Recruitment Agency explained that they offered the Complainant shifts in the same geographical area between 5^th November 2018 and the 31^st January 2019 with the same service user / The Respondent.  

I was advised that the Recruitment Agency had a meeting with the Complainant on the 31^st October 2018 at the Agency head office and during this meeting the Complainant refused to work certain shifts.  I was provided with a list of shifts offered to the Complainant by the Recruitment Agency.  These referred to a shift with the local Regional hospital in April 2018 (which pre-dated the incident which gave rise to this complaint) and further shifts dated 5^th November 2018 with the same Regional hospital which was accepted by the Complainant.  The list referred to several shifts that were accepted by the Complainant and refused by the Complainant.  The agency explained that this indicated a continuation of employment with them and the Complainant was placed with the Respondent. 

This evidence was confirmed by the Complainant.  She advised that she did a few shifts between the 26^th October 2018 and Christmas.  She couldn’t remember off hand how many.  She believed it to be 1 – 2 shifts per week.   She explained that the hospital shifts were 12.5 hours and she did take some of these.  She agreed that she was rostered for the 20^th January 2019.  She accepted the shift and turned up for work.  She was paid for the shift.  The Complainant argued that the locations offered to her were not her line of work which was intellectual disabilities. 

The agency contacted the Complainant on the 4^th February 2019 by phone.  She advised them that she had taken up another job elsewhere.  She asked them not to contact her any longer.  Her submission was that her character was ruined, and her career sabotaged. 

Dismissal requires communication to the Complainant to be effective.  I have reviewed the letter of the Respondent dated 25^th October 2018 in the context of the evidence provided to me at the hearing.  The letter confirmed that the Respondent was

“no longer in a position to continue with [the Complainant’s] placement at the [centre]”.

I must consider if there was an out and out dismissal/ sending away of the Complainant by the Respondent. 

While I have certain sympathy for the Complainant regarding the events leading up to the letter of the 25^th October 2018, based on the evidence of the shifts worked by the Complainant for the Respondent both before and after the letter of the 25^th October 2018, I have no alternative but to accept that there wasn’t an out and out dismissal on that date or subsequently.  What happened in this instance is more akin to a transfer to a different section of the Respondent.

I find that the Complaint is not well founded. 

Section 13 of the Unfair Dismissal (Amendment) Act 1993

Dismissal in dispute.  Dismissal as defined in s. 1 of the Unfair Dismissal Act 1977