Complainant

Respondent

Anonymised Parties

An Agency Worker

A Public Body

Representatives

Shay Clinton Fórsa Trade Union

Employee Relations Department Officer

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-00030336-001

16/08/2019

The Complainant was employed by the Respondent through a recruitment agency. The Complainant’s employment with the Respondent commenced on the 29th June, 2016 and she was paid until the 9th August, 2019. The WRC received the complaint on the 16th August, 2019. Both the Complainant and the Respondent have furnished me with copy of the contract between the Complainant and the recruitment agency which is the only written contract. The Complainant contends that she was unfairly dismissed by the Respondent and this is denied. The Respondent contends there was no dismissal, that the Complainant was not a direct employee and that the need to retain agency staff – ie the Complainant came to a natural end.

In accordance with Section 6 (1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant. The Respondent outlined that the Complainant was employed through an agency to provide cover for various posts from June 2016 until December, 2018. The Respondent stated:

·         That the Complainant was not a direct employee of the Respondent and did not hold a contract of employment with the Respondent – the Respondent was not a contracting employer;

·         That the Complainant was at all times paid by the recruitment agency who invoiced the Respondent on a weekly basis;

·         That all employees appointed by the Respondent (temporary and permanent) must be recruited through open competition to ensure compliance with the Code of Practice of the Commission for Public Service Appointments (CPSA) and that the Respondent had commenced a national recruitment competition in January 2017, to form a panel from which Clerical Officer posts would be filled;

·         That the holding of the national recruitment competition was in line with the Public Service Stability Agreement (PSSA – paragraphs 2.11.1 and 2.15.1) to increase open recruitment and minimise the use of agency staff;

·         That the Complainant had applied through the open competition to be included on the national panel but was unsuccessful;

·         That the post which the Complainant was covering as an agency worker was subsequently filled from the national panel in December 2018. The Respondent stated that “This resulted in the natural end for the need to retain agency staff, namely [the Complainant], to cover the position. As a result there was no longer a need to retain [the Complainant] as an agency worker in the position”. The Respondent further stated that “The specific purpose that existed and resulted in the [Respondent] requiring to source and retain Agency…..staff ceased with the appointment of successful candidates from the National..…Panel”;

·         That the Respondent did not accept there was a national agreement to convert agency staff into employees of the Respondent, that the Complainant had not furnished or presented any evidence of any such agreement, that there was no mechanism for this and further, that no agency staff were converted to temporary or permanent contracts by the Respondent in its geographical area;

·         That in the circumstances there was no unfair dismissal of the Complainant as the need for agency staff ceased. The Respondent cited cases ADJ-00012910 and ADJ-00008234 in support of its submissions;

·         That the case should be dismissed.

The Respondent also referred to various documents in support of its position including:

·         The Job Specification and Terms and Conditions of the Clerical Officer Grade 111 post which stated the following in relation to the Respondent’s Code of Practice on recruitment:

“The purpose of this recruitment campaign is to create a recruitment pool of Clerical Officers in order to fill vacancies as they arise……[XX] Recruit as part of the [Respondent] will run this campaign for Public Service Appointments (CPSA). The Code of Practice sets out how the core principles of probity, merit, equity and fairness might be applied on a principle basis. The Code also specifies the responsibilities placed on candidates…….Codes of Practice are published by the CPSA and are available on www.cpsa.ie”

Copy of the Code was provided at the adjudication hearing.

·         Two internal memos within the Respondent dated the 11th October, 2018 and the 12th August, 2019 respectively. The first memo stated:

“The Commission for Public Service Appointments (CPSA) was established on 19 October 2004 under the terms of the Public Service Management (Recruitment and Appointments) Act 2004. As the principal regulator of recruitment and selection processes within the public service, the Commission has a statutory role to ensure that appointments in the organisation subject to its remit (which include [the Respondent]) are made on merit and as the result of fair and transparent appointment processes. Appointment processes for recruitment to all positions within the remit of the Act are subject to Codes of Practice published by the Commission. The Codes set out the regulatory framework for such appointment processes……[The Respondent’s] recruitment licence is contingent on compliance with the CPSA Codes of Practice. This requirement applies to all levels of the organisation and for all types of recruitment; ie national competitions, locally run competitions, permanent posts, and specific purpose posts.”

The second memo of the 12th August, 2019 similarly stated that “Recruitment competitions should be run in accordance with public sector recruitment protocols”.

·         A memo from the Complainant’s Line Manager – which inter alia – stated:

“[Complainant] was advised in the April that no conversions were to take place (2018) and the posts were gone to the NRS for filling. I gave updates orally as things progressed as I had interactions daily with [the Complainant] as she worked in my office……….I kept them briefed from the time we knew no agency conversions were taking place and as paperwork was sent to NRS for filling. I had given her estimated timeframes that is the end of December when I thought a person would be in post and her contract would finish”.

·         An exchange of emails which show that the recruitment panel went live on 1/12/2017 and that the first post filled from the panel was on 9/1/2018;

·         Extracts from the PSSA highlighting paragraphs 2.11.1 and 2.15.1 in relation to open recruitment in the public service and agency staff.

The Complainant submits that from the time of her placement with the Respondent via the recruitment agency, her employment was continuous. The contract with the recruitment agency provided for a probationary period of 11 months and this was completed at the end of May 2017. The Complainant further contends that the contract did not specify any end date of her employment with the Respondent.

The Complainant met her Line Manager in July 2018 and arising from this exchange, the Complainant contends her Manager advised that all agency staff were going and all jobs were being filled from the panel. Subsequently, on the 16th October 2018, the Complainant wrote to the Line Manager as follows:

“As you are aware, I commenced with the [Respondent] on 29th June 2016 and I have continued in post to date.

I am aware that other agency staff within [the Respondent] have been converted to direct employees over the last number of years.

I have also been informed that I should also have had this opportunity to be converted as I was employed through an agency before a temporary panel was formed”.

The Complainant received a response from [the Respondent] on the 18th October, 2018 which – inter alia- advised as follows:

“While I acknowledge the valuable contribution you have made to the administrative function with [the Respondent] as an agency staff member, you are employed via [agency]. I wish to confirm that there is no automatic right or legislative entitlement for agency staff members to be converted to [Respondent] contracts.

Agency staff were taken on within [the Respondent] to fill temporary gaps pending the permanent filling of the post. All permanent posts are recruited for via the National Recruitment service. This permanent….. competition was open to any person who held the necessary skills and criteria who wished to apply for the post.

[R] management have taken the decision to fill any approved and funded vacant posts from this national panel. This decision is to ensure that [the Respondent] are compliant with the code of practice for public appointments. Under the code of practice [the Respondent] are required to run a transparent, competitive process to allow for equal opportunity”.

On foot of this exchange, the Complainant contacted her union Fórsa who made representations on her behalf in relation to the matter of converting agency staff to direct employees of the Respondent and provided examples of where this had occurred. The representations did not change matters and in an email to Fórsa of the 7th December, 2018, the Respondent reiterated that it must comply with its code of practice on recruitment and that posts would be filled from the permanent panel.

In relation to the matter of agency staffing, Fórsa also referred to paragraph 2.15.1 of the PSSA [2018-2020] which states that:

“Management will engage with the parties with a view to minimising the use of agency as far as possible and practicable over the lifetime of the agreement”

Fórsa contends on behalf of the Complainant that the Respondent has failed to consider that conversion of agency staff occurred in other sectors within the Respondent and that this was in line with the agreement reached at national level. Fórsa maintained this resulted in trained staff being retained within the Respondent and that there were several years where there was no national panel. In support of its contentions, Fórsa furnished two documents internal to its organisation dated 21/2/2017 and 1/3/2017 which respectively stated:

“At a meeting held earlier today, [the Respondent] confirmed to me that the advertising of a national clerical officer panel is not meant to discommode the cohort of existing temporary staff, who by now have undertaken on-site training and are familiar with the jobs.”

“[The Respondent], however, is concerned that designation of temporary staff who have not yet accrued statutory rights may cause problems with the recruitment licence. To that end, I have reached agreement with [the Respondent] that those who have not yet accrued statutory rights, would remain in employment”.

Fórsa also stated that this was the only case it has had to pursue in relation to the conversion of a long serving agency worker to a contract with the Respondent.

In relation to her pay, the Complainant referred to an email sent to Fórsa on 7 December, 2018 which stated that the Respondent would “request….to maintain the status quo pending the outcome of adjudication” (by the WRC). However, in a subsequent letter of the 25th July, 2019, the Respondent advised that “….with effect from the 9th August 2019 [the Respondent] will cease all payments to [agency] in respect of [the Complainant] if Adjudication [by WRC] has not taken place before then”.

A witness on behalf of the Complainant stated that everyone she was aware of working in the sector had been appointed to posts within the Respondent. The witness stated that she knew this as she was active within Fórsa. This was contradicted by the Respondent who asserted on foot of its questioning of the witness, that she could not say how these persons were appointed and/or that any such persons were not appointed via open competition/panel.

It is the Complainant’s contention that she was unfairly dismissed when her contract was terminated by the Respondent on the 21st December, 2018 and when she stopped receiving pay on 9th August, 2019. The Complainant contends there was no term in the contract which stated that the unfair dismissals legislation did not apply. The Complainant further contends that persons employed through an employment agency are regarded as employees of the user company for the purposes of the unfair dismissals legislation and that where they satisfy the qualifying service requirement, they may bring a claim for unfair dismissal against the user company in the event of dismissal. In addition, the Complainant submits that employers of agency staff who may be retained for up to 1 year or more should provide copy of the company’s disciplinary procedure, as any disciplinary action or dismissal then becomes the responsibility of the company.

The Complainant cited various cases in support of her arguments and furnished copy of the Employment Appeals Tribunal determination in the case of Hevey v Provincial Security Services Ltd (Case No UD447/2011).

Fórsa on behalf of the Claimant, reiterated the view that the Complainant was unfairly dismissed because she was not retained in employment similar to her colleagues and in line with an agreement with the Unions in the sector to regularise agency staff. Fórsa stated that it is normal industrial relations practice that when an agreement is reached that it is honoured, particularly as it was part of the overarching national public service agreement. In its view, hiding behind the fact that a permanent panel was available to appoint from was not a satisfactory response and position for the Respondent to hold and that in any event, the Complainant’s post should have been converted before the panel was established.

The Complainant clarified that she is seeking re-instatement and/or re-engagement to a Clerical Officer Post with the Respondent from the termination of her post on the 9th August 2019.           

Much of the submissions by both parties centred on whether or not there was a national agreement in place to convert agency staff – namely the Complainant in this case - into employees of the Respondent. Whilst the Complainant and her union Fórsa strongly argued there was such an agreement and that conversion of agency staff was common practice, this contention was disputed by the Respondent who argued that no evidence of any such agreement had been presented, that there was no mechanism for any such conversions, that the Respondent is bound by the code of practice for public appointments and that no such conversions had taken place in its geographical region. I have carefully considered the submissions in relation to this matter and have decided this is essentially an industrial relations matter and that the implementation and/or enforcement of any such disputed national agreement is outside my jurisdiction.

I now wish to consider the matter of the Complainant’s contract. The Complainant had one written contract which was with the recruitment agency and was signed by her on the 28th June, 2016. That contract stated:

“The ‘Temporary Agency Worker’ means the person whom the Company engages to carry out temporary agency work assignments as per this Statement of Terms of Employment……The Assignment means the period during which the Temporary Agency Worker is engaged to render services to the client.

These terms of engagement constitute a contract for temporary agency work……and govern all assignments undertaken by the Temporary Agency Worker whereby he/she will be assigned to provide services to clients. The Temporary Agency Worker will be assigned to work for a client of the Company…..The Company is not obliged to provide any assignments to the Temporary Agency Worker and the Temporary Agency Worker is not obliged to accept an assignment offered by the Company.

If the Temporary Agency Worker accepts an assignment offered by the Company, these terms shall apply. Between assignments, no contract shall exist between the Company and the Temporary Agency Worker. No alteration of these terms and conditions shall be valid unless agreed in writing between the Company and the Temporary Agency Worker.

On commencement of each assignment the Temporary Agency Worker will receive a letter which will outline the particulars in relation to terms of that assignment. That letter along with these terms form the Temporary Agency Worker’s terms and conditions of employment”.

According to these contractual provisions, the terms of the engagement between the recruitment agency and the Complainant constituted a contract of employment for temporary agency work and these continued to apply whilst the Complainant was on assignment with the Respondent. The contract makes clear that the recruitment agency specified the terms and conditions of the Complainant’s employment and was also responsible for her remuneration. In addition the contract provided that the Complainant was at liberty to accept or refuse assignments offered by the recruitment agency. These provisions are consistent with the Protection of Employees (Temporary Agency Work) Act, 2012. In that regard, the 2012 Act defines an “agency worker” as “an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency” and it defines an “employment agency” as “a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first mentioned person”.

The Complainant contends that notwithstanding her contract with the recruitment agency, that agency workers are regarded as employees of the hirer company for the purpose of the unfair dismissals legislation. Conversely, the Respondent argued that the Complainant was not a direct employee of the Respondent, that she did not hold a contract of employment with the Respondent, that the Respondent was not a contracting employer and that it had its obligations with regard to the unfair dismissals legislation, by virtue of the fact that it was meeting the complaint as the Respondent.

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

“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 thirdperson 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 above terms provide that in the event of a dismissal, the “third person” – ie the hirer/Respondent in this case, is deemed to be the employer and the agency worker/ie the Complainant “shall be deemed to be an employee employed by the third person under a contract of employment”. Accordingly, in the event of a dismissal, a contract of employment with the third party/Respondent arises by default irrespective of whether the salary is paid directly to the agency as in this case and irrespective of the fact that the hirer/Respondent was not party to the contract of employment between the Complainant and the recruitment agency.

I now wish to consider whether there was a dismissal in this case and if so, whether it was unfair as claimed by the Complainant.

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as:

“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….”

Section 2(2)(b) of the Unfair Dismissals Act [1977-2017] provides:

“[….this Act] shall not apply in relation to- ……dismissal where the employment was under a contract of employment for a fixed term or 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) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.

Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out specific circumstances wherein the dismissal of an employee “shall be deemed…..not to be an unfair dismissal”.

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had:

a)      “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b)      to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”

The Respondent has stated that the post which the Complainant was covering as an agency worker was subsequently filled from the national panel in December 2018, that “This resulted in the natural end for the need to retain agency staff, namely [the Complainant], to cover the position…..” and that “The specific purpose that existed and resulted in the [Respondent] requiring to source and retain Agency…..staff ceased with the appointment of successful candidates from the National …Panel”. In the letter to the Complainant of the 18th October, 2018, her Line Manager stated that “Agency staff were taken on within [the Respondent] to fill temporary gaps pending the permanent filling of the post”. In this regard, the Respondent gave a detailed account of its recruitment procedures and that it was bound by the public service code of practice, that all employees appointed by the Respondent (temporary and permanent) must be recruited through open competition, that it commenced a national recruitment competition in January 2017 to form a panel from which Clerical Officer posts would be filled and that the Complainant had unsuccessfully applied for inclusion on the national panel. The Respondent cited cases ADJ-00012910 and ADJ-00008234. In the latter case dated the 9th July, 2018 the Adjudication Officer determined that he “….was not in a position to undermine the rules governing the operation of recruitment panels….”.

The Complainant has contended that she was retained by the Respondent for in excess of one year and that there was no term in her contract which stated that the unfair dismissals legislation did not apply. The Complainant submitted that employers of agency staff who may be retained for up to 1 year or more should be given a copy of the company’s disciplinary procedure as any disciplinary action or dismissal then becomes the responsibility of the company. The Complainant stated that there were no issues with her work performance, that she had completed her probation in May 2017, that she had received training and that in all the circumstances, it was unreasonable of the Respondent to terminate her position. The Complainant argued that the Respondent was hiding behind the fact that a permanent panel of clerical officers had been created and that this was not a satisfactory or reasonable response. The Complainant cited various cases in support of her arguments and furnished copy of the Employment Appeals Tribunal determination in the case of Hevey v Provincial Security Services Ltd (Case No UD447/2011). Although this was a case relating to constructive dismissal, it does highlight the obligations on employers and employees to act reasonably.

Having regard to the above, I am satisfied that the Complainant was entitled to bring a claim for unfair dismissals, she had the qualifying service and was not excluded from doing so by any term in her contract of employment with the recruitment agency or by virtue of Section 2(2)(b) of the Unfair Dismissals Act [1977-2017] since there was no written contract with the Respondent.

I note that no disciplinary procedures were instigated by the Respondent and that no issue was raised regarding the Complainant’s work performance. I also note the statement in the letter of the 18th October, 2018 received by the Complainant from her Line Manager which acknowledges “……the valuable contribution [the Complainant has] made to the administrative function with [the Respondent] as an agency staff member….”.

One of the purposes of a disciplinary procedure is to put an employee on notice that his/her position may be in jeopardy as a consequence of some conduct or competence matter. In the instant case, I am satisfied that notwithstanding that no disciplinary procedures were invoked, the Complainant must have known that her position was in jeopardy with the Respondent. The Complainant was aware of the establishment of the national recruitment panel, she had applied to be included and according to the memo furnished to the parties at the adjudication hearing, the Complainant’s Line Manager “…..gave updates orally as things progressed as [she] had interactions daily with [the Complainant] as she worked in my office……….I kept them briefed from the time we knew no agency conversions were taking place……I had given her estimated timeframes that is the end of December when I thought a person would be in post and her contract would finish”. This was not disputed by the Complainant at the hearing.

Notwithstanding, having regard to all the circumstances and evidence adduced, I decide there was a dismissal in this instance and that the Complainant’s employment was terminated by the Respondent by virtue of the fact that it was not continued or renewed. Therefore, a contract of employment is deemed to have arisen between the Complainant and the Respondent.

I must now decide whether the Respondent has demonstrated substantial grounds to justify the dismissal and whether the Respondent’s conduct was reasonable. Having regard to all the evidence adduced, it is my decision that the Respondent acted unreasonably in terminating the Complainant’s contract of employment. In my view the Respondent’s obligations with regard to a public process of recruitment, does not adequately justify the termination of the Complainant’s employment in circumstances where there were no issues regarding her work performance and when she was employed by the Respondent from the 29th June, 2016 and the Respondent continued to pay the agency up until the 9th August 2018. Nor in my view, should the requirement for a public recruitment process undermine the entitlement of the Complainant to succeed in a claim for unfair dismissals. I decide this complaint is well founded.

Having regard to all the circumstances including the CPSA Code of Practice, I decide that compensation is the appropriate remedy. In that regard, I have taken into account that the Complainant continued to be paid until 9/8/2018 and that it was open to her to seek another assignment in accordance with her contract with the recruitment agency. Accordingly, having regard to the Clerical Officer Grade 111 salary scale, I award the Complainant €10,000.

An Agency Worker V A Public Body