UDD194

The Adjudication Officer decided that the Appellant did not have the requisite service to maintain a complaint under the Act and that consequently she did not have jurisdiction to hear the Complaint.

Position of the Respondent

The Respondent submitted that the Appellant commenced employment as a deskside support engineer with the Respondent on 1^stFebruary 2016 and the employment was terminated by way of dismissal during an extended period of probation on 5^thOctober 2016. The Appellant was paid one week’s pay in lieu of notice. The Respondent submitted that, by reference to the Act at Section 2(1), the Appellant lacked the requisite service to maintain a complaint under the Act.

The Respondent submitted that the Appellant had been employed as an agency worker by employment agency M prior to his engagement as a fixed term worker by the Respondent. The Respondent submitted that Section 13 of the Unfair Dismissals (Amendment) Act 1993 has no application to the Appellant’s service with the Respondent or to his dismissal. The Appellant was not an agency worker at the time of his dismissal and consequently cannot maintain a complaint based on that section of the Act. The Respondent contended in any event that during his period of employment as an agency worker the end user or third person within the meaning of the Act at Section 13 was Company P and not the Respondent.

The Respondent submitted that the Appellant freely repudiated his contract as an Agency worker with employment agency M. Consequently, having regard to Section 2(4) of the Act and Section 1(b) of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 (the Act of 1973), the Appellant, having voluntarily left his employment as an agency worker with employment Agency M, cannot be found to have maintained continuous service through the transition from his employment with employment agency M to his employment with the Respondent. No subsequent service with the Respondent can be regarded as continuous with the Appellant’s service with employment agency M, which employment was voluntarily terminated by the Appellant.

Position of the Appellant

The Court considers it useful to reproduce in its entirety the submission of the Appellant’s professional representative in the within matter. The Appellant’s representative submitted as follows:

‘The Claimant commenced long term sick leave in June 2016, in October without recourse to any procedures the employee was simply notified of the dismissal.

The Appellant will be (sic) only witness

There is the issue of one year of continuous service. And the provision of Unfair Dismissals Act will be relied upon.’

The Appellant’s representative appended a copy of Section 13 of the Unfair Dismissals (Amendment) Act, 1993. The Appellant’s representative chose not to proffer testimony.

Discussion and conclusion

The Court’s consideration of the within appeal was made considerably more difficult than it should have been by virtue of the brevity of the submission tendered by the representative of the Appellant on the Appellant’s behalf.

The Court established from the Respondent’s submission and through questioning of the Appellant’s representative that it is common case that the Appellant held a contract of employment with employment agency M from 12^thAugust 2015. That contract resulted in his placement with the Respondent and being assigned by the Respondent to work on a contract held by the Respondent with Company P. The Appellant’s contract with the employment agency ended on 31^stJanuary 2016 and he became a fixed term employee of the Respondent providing desktop support on the site of Company P on 1^stFebruary 2016.

The Appellant did not dispute the Respondent’s submission that the Respondent held a contract for the provision of desktop services to Company P and that it assigned the Appellant to that contract from 1^stFebruary 2016. Neither did the Appellant dispute that in execution of that contract the Respondent maintained a desk at Company P for the purpose of providing that contracted service and that it required the Appellant to attend for work at that location.

The Appellant’s representative, when questioned by the Court, submitted that the Appellant was placed with the Respondent by employment agency M during the currency of his contract of employment with that agency albeit he was located at Company P to service the contract of the Respondent with Company P. The Appellant’s representative clarified to the Court that it was his submission that, by operation of Section 13 of the Unfair Dismissals (Amendment) Act, 1993 (the Act of 1993) the continuous service of the Appellant for the purposes of the Act should comprise both his service under his contract of employment with employment agency M and his service while holding a fixed term contract of employment with the Respondent.

The Act of 1993 at Section 13 provides as follows:

• 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 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.

The Appellant however seeks to rely on Section 13 to establish that, for the purposes of the Act, he had continuous service with the Respondent from 1^stAugust 2015, the date of commencement of his employment with employment agency M, until the date of his dismissal by the Respondent in October 2016. Section 13 of the Act of 1993 has nothing whatsoever to do with continuity of service. The purpose of Section 13 is to create certainty as regards liability and employment status for the purposes of the Act as respects a dismissal occurring while a person is employed by an employment agency and assigned to a third person. The section cannot be interpreted as having a general application for the purposes of computing service following the completion of the contract with the employment agency and in respect of a dismissal occurring during the currency of a subsequent fixed term contract of employment.

The Act, at section 2(4), sets out that the period of service of an employee and whether that service had been continuous should be ascertained by application of the first schedule to the Minimum Notice and Terms of Employment Act, 1973 as amended.

The first schedule to the Act of 1973, in relevant part, provides as follows

• 1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

  (a) the dismissal of the employee by his employer, or

  (b) the employee voluntarily leaving his employment.

• (1)(6). The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.

The Court notes that the Appellant does not dispute that he left his employment with employment agency M by way of voluntary resignation. The Court therefore finds, notwithstanding any other consideration, that by operation of Section 1(b) of the First Schedule of the Act of 1973, the Appellant’s service with the Respondent cannot be found to be continuous with his service with employment Agency M.

Having reached these conclusions, it is not necessary for the Court to address the question as to whether the Respondent or Company P was the third person within the meaning of Section 13 of the Act during the period of the Appellant’s employment as an agency worker from August 2015 to 31^stJanuary 2016.

The Court finds that, at the date of his dismissal, the Appellant had less than one year’s continuous service with the employer who dismissed him. Consequently, by operation of the Act at Section 2(1), the Appellant cannot maintain a complaint under the Act.

Determination

The Court determines that the Appellant does not have the requisite service to maintain a complaint under the Act. The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
21st January 2019______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.