Complainant

Respondent

Anonymised Parties

An Accounts Assistant

A care services provider.

Representatives

Self.

Niamh Daly IBEC

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-00029946-001

29/07/2019

The Complainant was employed by the Respondent as an Accounts Assistant from 17th September 2018 until 21st February 2019.

This complaint was received by the Workplace Relations Commission on 29th July 2019.

PRELIMINARY ISSUES:

Jurisdictional Argument

The Respondent submits that the Workplace Relations Commission does not have jurisdiction to hear this claim under the Unfair Dismissals Act 1977-2015 (the Act) as the Claimant does not have the required service as set out in section 2(1)(a) of the Act Section 2 (1) of the Unfair Dismissals Act, 1977 which states the Act shall not apply to;

a)      an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

The Claimant was employed by the Respondent from 17th September 2018 until 21 February 2019. Prior to this, the Claimant was employed through an agency, from 13 July 2017 until 31 July 2018.

Under the Unfair Dismissals (Amendment) Act 1993; Section 13 states that

‘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’.

It is the Respondent’s position that Section 13 of the 1993 Act does not apply to this claim either as the Claimant had not been in employment with the employment Agency since July 2018 and was therefore not in their employment at the time of the termination of the contract of employment.

In any event, this case concerns the dismissal of a direct employee not an Agency worker and therefore there was no “third” person related to this dismissal; a dismissal “occurring after such commencement” under Section 13 must refer to the dismissal of the person working under the Agency contract, not a direct contract.  

Continuous service is determined by rules set out in the amended First Schedule, Minimum Notice and Terms of Employment Act 1973 to 2001 as follows;

“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.”

The basic rule as set out in the Minimum Notice Act is that service with the same employer can be deemed to be continuous unless the contract of employment is legally terminated, directly or constructively, by either party or by operation of law.   The Claimant terminated her employment with the agency of her own volition in July 2018. She commenced a new and separate employment relationship with the Respondent some two months later. Having left her first employment voluntarily, she cannot claim continuous service under Section 1.

The Claimant had five months of service with the Respondent, short of the 52-week continuous service requirement. Therefore, the Unfair Dismissals Acts 1977-2015 does not apply to this claim.

The Respondent relies upon the following cases;

Eimear Musgrave & PayPal Europe Services Limited (UD1630/2012). The claim of an unfair dismissal came before the Employment Appeals Tribunal. The Claimant was of the view that she had over one years’ continuous service. However, the Respondent opposed this and argued that the Claimant only had 46 weeks and therefore, she could not bring a claim against them. From the 7 June 2011 to the 31 July 2011 the Claimant had had a role with an Agency (GX) for the Respondent and had been paid through the Agency. On the 1 August 2011, the Claimant signed a contract with the Respondent and from that date, was paid by the Respondent. She was dismissed on the 16 May 2012 and was paid four weeks in lieu of notice.

The Tribunal was of the view that at no time up to the 1 August 2011 was the Claimant employed by any party other than GX who would have been vested with the power to move the Claimant to an alternative company should the need have arisen. GX and the Respondent were separate entities. GX simply provided a service to the Respondent company from time to time when Agency workers were required by the Respondent company.

The Tribunal stated that ‘The Tribunal was asked to consider Section 13 of the Unfair Dismissals (Amendment) Act, 1993, and its application in this situation and, having considered the points put forward by both parties, the Tribunal finds that this section has no applicability and the Section clearly envisages a scenario whereby a Claimant dismissed from a workplace and whose employment has been contractually governed by an employment Agency can have a cause of action under the unfair dismissal legislation against the workplace end user’.

The Tribunal therefore concluded that the Claimant had only 46 weeks of service with her employer, 6 weeks short of the 52-week requirement. It was found that ‘The Tribunal has no jurisdiction to hear this case. The claim under the Unfair Dismissals Acts, 1977- 2007, falls’.

Desktop Support Engineer IT Services V IT Services provider (ADJ-00007275)

The complainant’s employment began on 1 August 2015 with an employment Agency who assigned him to the Respondent until 29 January 2016. He was directly employed by the Respondent on 1 February 2016. He submitted that he could combine these two periods to meet the statutory requirement of one years’ service. He further contended that the employer was a constant; the employment to which he was assigned by the employment Agency on the 1 August 2015 was the Respondent and this continued to be the case when he was directly employed by the Respondent. He concluded that this satisfied the requirement of the Minimum Notice Acts regarding continuous service and that he could therefore invoke the protection of Section 13.

The Respondent submitted that for a complainant to enjoy the protection of section 13 of the Unfair Dismissals (Amendment) Act 1993, he /she must be an Agency worker within the meaning of the section immediately prior to the submission of the complaint. The Respondent contends that the complainant must be an Agency worker when the dismissal occurs. The complainant does not meet these statutory requirements.

The Adjudication Officer found that “To benefit from the protection of section 13 of the Unfair Dismissals (Amendment) Act, 1993, the complainant must be an Agency worker at the time of submitting his complaint” and found that he did not have jurisdiction to hear the complaint.

This case was appealed to the Labour Court. The Court upheld the Adjudication Officer’s finding on this preliminary point, stating;

“The Court finds that Section 13 of the Act does not operate to create continuity of service for the purposes of the Act for an employee of an employment agency who subsequently becomes a fixed term Worker in the employment of an employer to whom he had previously been assigned... 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... 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.”

The Complainant informed the hearing that she worked for the Respondent through an agency from 13th July 2017 until 31st July 2018 when she resigned to take up employment with another company. She was approached by the Respondent and offered direct employment which she commenced on 17th September 2018, this employment ended with her dismissal on 21st February 2019.

It is the Complainant’s contention that it was agreed by the Respondent that both periods of employment would be considered continuation of service with the Respondent.

The Representative of the Respondent has, as a preliminary matter, raised the subject of continuous service and quite clearly states the following:

The Workplace Relations Commission does not have jurisdiction to hear this claim under the Unfair Dismissals Act 1977-2015 (the Act) as the Claimant does not have the required service as set out in section 2(1)(a) of the Act Section 2 (1) of the Unfair Dismissals Act, 1977 which states the Act shall not apply to;

b)      an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

The Claimant was employed by the Respondent from 17th September 2018 until 21 February 2019. Prior to this, the Claimant was employed through an agency, from 13 July 2017 until 31 July 2018.

I note that the Complainant was issued with a contract of employment by the Respondent on 10th October 2018 and said contract was signed by the Complainant on 1st November 2018.

In relation to continuation of service the above-mentioned contract makes no reference to same. The commencement date as stated is the 17th September 2018. At hearing the Respondent has stated that there was no agreement in relation to continuation of service.

Having considered the preliminary matter I have concluded, based purely on application of legislation, that the Complainant does not have the required service under the Unfair Dismissals Act, 1977. This being the case I have no jurisdiction to hear the complaint.

Having considered the preliminary matter I have concluded, based purely on application of legislation, that the Complainant does not have the required service under the Unfair Dismissals Act, 1977. This being the case I have no jurisdiction to hear the complaint.

Unfair Dismissals Act, 1977.