UDD2012

This is an appeal by Ms. Hickey, (‘the Complainant’), against a Decision of an Adjudication Officer, (‘AO’), that she had not been dismissed unfairly by DHL, (‘the Respondent’), contrary to her rights under the Unfair Dismissal Acts 1977 to 2015, (‘the Acts’).

The Complainant is an agency worker. From September 2010 she was placed with the Respondent. She went on sick leave in May 2014. She sought to return to work on a number of subsequent occasions.

On 6 November 2017, she wrote to the agency, QED Contracts Agency Ltd., to say that ‘I must now conclude that I cannot return to work in DHL on this Monday. I must also conclude that I have been dismissed from the position I was recruited for in 2010, i.e. working in DHL….’

The Court was advised that there were personal injury proceedings in the High Court involving the parties. This was raised with the Complainant’s representative in order that the Court could be satisfied that it was not being asked to make a Determination under the Acts on facts that are the same as those which had given rise to proceedings in the High Court. The Complainant’s representative stated that the High Court proceedings had been instigated prior to the alleged dismissal and that, while information regarding relations between the parties in the period from September 2010 to 23 October 2017 was set out in the parties’ submissions, this constituted no more than background information and the basis on which it was being argued that there had been an unfair dismissal was the interactions between the Complainant and the agency, QED Contracts Ltd., in the period from 23 October 2017 up to 6 November 2017. The Court accepted this recognition by the Complainant that matters prior to 23 October 2017 could not be determinative and agreed to hear the case on that basis. Some background information that relates to the period prior to these dates is not included in this Determination.

Summary of Complainant’s arguments

Having made a number of attempts to return to work between May 2014 and October 2017, the Complainant met with the agency on 13 October 2017 regarding a return to work. A subsequent planned meeting was cancelled by the agency and there followed a series of e-mails between the parties.

By e-mail to the agency on 21 October 2017, the Complainant made clear her wish to return to her job in DHL and noted that she had supplied a fit to return to work letter. On 22 October 2017 she told the agency that she would meet with them if her suspension was lifted and she was to be allowed to return to work. She stated that if the agency was unable or unwilling to do this then she saw it as quite simple and noted that, ‘I have been dismissed’. The replies from the agency referred to meeting to assess availability and matching clients’ needs rather than the return to work of the Complainant in the Respondent company.

This correspondence culminated with an e-mail from the Complainant on 6 November 2017 in which she noted ‘..the reality of my victimisation by suspension since May 2014 and the reality that my three-and-a-half years ‘absence’ was entirely a result of the continued actions by QED and DHL’ She went on to ask the agency to cease requesting a meeting ‘on an entirely false premise’ and to give an undertaking to lift her suspension and to allow her to return to work with DHL. She re-stated that if the agency was unable or unwilling to do this then ‘I have been dismissed’.

There was no further correspondence.

Suggestions that this e-mail amounted to a resignation are preposterous. The Complainant sought a return to work and this was denied to her. This amounts to a dismissal.

As per Section 13 of the Unfair Dismissals (Amendment) Act 1993 , DHL as the ‘hirer’ is responsible for the dismissal that occurred on this date.

The Complainant was at a loss of €23,914 as a result of her dismissal. Apart from two short term jobs, she had been unable to secure employment for two years. She had participated in a Community Employment course for 19.5 hours per week from May 2017 to November 2019, for which she had received payment from the Dept. of Social Protection of €286 per week but this should not be taken into account as she could have done this course and continued to carry out her part-time job with DHL if she had not been dismissed. In addition, she lost out on Family Income Supplement of €180 per week, as participation in the course did not qualify for this.

Summary of the Respondent’s arguments

The Respondent did not dismiss the Complainant and never sought to terminate her assignment. It is the Respondent’s understanding that the agency did not dismiss the Complainant but, rather, that she resigned voluntarily.

The Complainant’s sick leave was managed by the agency and the Respondent was unaware of the interactions between the Complainant and the Respondent. As a result, the Respondent was unaware that the Complainant had resigned and was unaware of the Complainant’s fitness to return to work in October 2017.

Without prejudice to the above, the burden of proof rests with the Complainant to demonstrate that she acted reasonably and exhausted all internal procedures and that the actions of the Respondent were such that she was left with no option but to resign. No grievance was brought to the attention of the Respondent.

The Respondent was satisfied that the Complainant could return to work for them when she was deemed fit to do so, when authorised to do so by the agency and if there was an opening for an agency worker.

With regard to alleged losses, the Court was asked to note that evidence of job applications shows sporadic attempts to secure work and that there were large gaps in the periods between applications, of which there were relatively few, in any event.

The applicable law

Unfair Dismissals Acts

“ 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;

Unfair Dismissals (Amendment) Act 1993

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.

Deliberation

The Complainant’s representative clarified for the Court that there was no claim of constructive dismissal being made in this case, as it was stated that no resignation had occurred. Rather it was argued that, because the agency refused to provide the Complainant with a return to her job on 6 November 2017, the Respondent had dismissed her.

It was argued that the agency was acting as an ‘agency by estoppel’ on behalf of the Respondent and that s.13 of the Unfair Dismissals (Amendment) Act 1993, (see above), meant that the Respondent was responsible for the unfair dismissal.

The first issue for the Court to consider is whether there was a dismissal. There is, in the Court’s view, no doubt that, if there was a dismissal, in accordance with s.13 the responsibility to prove that any dismissal was not unfair rests with this Respondent.

No evidence of an active act of dismissal was put to the Court. The definition of ‘dismissal’ in the Acts requires that the employer terminates the employment relationship. The Respondent denies ever having done so.

The Complainant, for her part, states that the failure to provide her with a return to work is, itself, an act of dismissal. The Respondent stated in response that they placed no barrier to a return to work and were unaware that the Complainant had been fit to return in October 2017.

There is no provision in the Acts that supports a contention that when an agency worker tells the agency that he/she regards himself/herself as dismissed, the hirer should simply be deemed to have dismissed the worker concerned. Nor, indeed, could such a contention be supported by any logic. While, because any potential legal liability under the Acts rests with the hirer, it might be desirable for the hirer to be made aware of any correspondence between an agency worker and the agency that relates to the employment relationship with the hirer, it simply cannot follow that, by itself, a declaration by an agency worker to the relevant agency that they deem themselves to have been dismissed means that the hirer is responsible for an unfair dismissal.

It is not necessary for the Court to consider if the failure to provide the Complainant with a return to work at a time when she sought it, and had medical certification to support it, amounted to a constructive dismissal, as not alone was this not argued for the Complainant, her representative was emphatic that she had most assuredly not resigned. That emphatic statement, of itself, calls into question whether there could have been a dismissal, as neither the agency nor the Respondent had taken any clear and active action to dismiss and, as per the Complainant’s representative, the Complainant had not resigned. This supports the Court in its view that the Complainant’s entire case against the Respondent is illogical and misconceived.

As the Court has not been presented with any evidence that there was a dismissal, it is not necessary for the Court to give consideration to any other aspects of the complaint.

Determination

The Court upholds the Decision of the AO.

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.