UDD2011

This is an appeal by Ms. Hickey, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, under the Unfair Dismissals Acts 1977 to 2015, ‘the Acts’, that she had not been constructively dismissed by QED Contracts Ltd., ‘the Respondent’.

The Respondent is an employment agency. The Complainant is an agency worker who had been placed by the Respondent in a job with DHL (Ireland) in 2010.

The Complainant states that she was constructively dismissed by the Respondent on 6 November 2017.

In May 2014 the Complainant had gone on sick leave from her job with DHL. It is a matter of contention between the parties as to her status in the period between that date and 6 November 2017.

Preliminary Issue

Before considering any substantive aspect of the complaint, the Respondent’s representative drew the Court’s attention to s.13 of the Unfair Dismissals (Amendment) Act 1993 which reads 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

In response, the Complainant’s representative put forward the argument that when the employment relationship with the hirer ceased, there remained an employment relationship with the agency that provided a basis for a claim against the agency under the Acts.

The Respondent’s representative noted that both cases were alleging that dismissal occurred on the same date. Therefore, even if the Court accepted the novel argument that there was an employment relationship between the Complainant and the agency, for the purposes of the Acts, after the alleged termination of employment by the hirer, the argument had no applicability to the instant case. He noted also that even if the Court was to accept this argument by the Complainant despite the fact that, in his view, it had no rationale in law, its effect would be to establish an employment relationship between the Complainant and Respondent that only commenced on the very day that the Complainant was seeking to argue that she had been dismissed, in which case she would not have the necessary 12 months’ service to take a complaint under the Acts.

Deliberation on the preliminary point

This Court cannot be averse to novel arguments. However, such arguments, if they are to be taken seriously, need to have some basis in employment statutes. There is no basis anywhere in the Acts for the argument put forward by the Complainant’s representative.

Section 13, see above, represented a significant advance in the protection of agency workers as, prior to this amendment to the Acts, such workers were in the invidious legal position of not being deemed as an employee of either an agency or a hirer for the purpose of this legislation. It is not a credible argument on the part of the Complainant’s representative to suggest that this provision can be altered to mean anything other than what it states. It is a fact, that is set out clearly and unequivocally in the section, that, for the purposes of the Unfair Dismissals Acts, where an agency places a worker with a third party, the hirer is the employer and any liability under the Acts rests with that employer. The Complainant’s representative persisted with an argument that flies in the face of this indisputable fact, despite being invited on a number of occasions to consider if the Complainant might wish to withdraw this particular complaint. It appears that he wished, on behalf of the Complainant, to pursue two Respondents in respect of the same set of facts, despite the clarity of the legal provision.

A separate preliminary point raised on behalf of the Complainant does not arise for consideration by the Court as there is no basis in the Acts for a case against this Respondent.

Determination

The Decision of the AO is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Tom Geraghty
C.R.______________________
14 February 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.