Complainant

Respondent

Anonymised Parties

Cleaner

Service Provider and Employment Agency

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-00028604-001

22/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028604-002

22/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028604-003

22/05/2019

The complainant works for a contract cleaning services company and her place of work was an office based on a contract for cleaning services between the employer and the third party. The occupant of the office relocated, and the complainant received no communication from her employer (contract cleaning company) about redeployment or her future with the company. However, payment of wages ceased. The respondent was unavailable to attend on the date of hearing; however, they sent a written submission. They accepted the complainant was due holidays and notice and stated that holidays would be paid on the 5th of December 2019. They also stated that under the Unfair dismissal Act as they were an employment agency it was the company who the agency employee provided services to, who were liable in so far as such an action (Unfair Dismissal) could be maintained and not the respondent. On making enquiries in February early 2020 and copied to the respondent; the complainant confirmed that to date no holiday or notice payments have been received from the respondent.

The complainant states that she was not an agency worker rather she is an employee working for a managed service contract company, who works under the supervision and direction of the company who employs them and not under the supervision and direction of the company where they work. The complainant opened EDA1823 Tesco Ireland T/A Tesco Coonagh Limerick and Marek Pawlisiak a Labour Court determination pertinent to the facts of this case. In that case an employee of Noonan Services Group made a complaint against Tesco. Tesco arguing, they were not the employer rather the employer was the employer was the service provide, that position was upheld by the Labour Court.

“The Court is very familiar with the distinction between a provider of agency personnel and a provider of managed services.” …Noonan Services Group Limited was contracted at all material times to provide security services at the Respondent’s stores throughout the country. It did not supply the Respondent with personnel to work under the latter’s supervision and direction. It follows, therefore, the Complainant’s claims against the Respondent under the 1998 Act are not well-founded as the Respondent was at no stage his employer for the purposes of that Act.”

The complainant’s employment commenced work as a cleaner on the 20th March 2012 and continued with the respondent post a transfer of undertaking. On the 18th February 2019 her employer ceased paying her and providing any work to her. She had contacted her employer on the 7th of February 2019 when she heard that the company who she provided cleaning services to, were relocating. Despite repeated contacts, union representation on her behalf, her employer has simply stone walled, providing no explanation why they stopped paying her, no communication about her future and has walked away and refuses to meet their legal obligations as set out relating to unfair dismissal, notice and holidays.

There has been no consultation about the dismissal and a refusal by the employer to pay holiday entitlement and notice, which are statutory entitlements.

The employer’s failure to engage has led to these complaints being brought to the WRC.

The respondent did not attend at the hearing; although, they made a written submission.

They state that role was made redundant on the 18th February 2019 as their client closed the office and relocated elsewhere.

They confirm that the employee commenced employment on the 20th March 2012.

The complainant worked 15 hours per week at €10.80 per hour which equates to €162 per week.

Complaint Reference: CA-00028604-001 Unfair Dismissal-For unfair dismissal legislation the hirer is deemed to be the employer. This is so regardless of who pays the worker. Section 13 of the Unfair Dismissals (Amendment) Act, 1993 provides that agency workers can seek redress for unfair dismissals from the business in which they are placed by an employment agency. Employment rights have also been conferred on agency workers as against the end user/hirer by an “implied contract of service”. Instructive cases in this regard are Diageo Global Supply v Mary Rooney [2004] and Dacas v Brook Street Bureau where the agency worker was deemed to be an employee of the end user. The respondent is an employment agency within the meaning of the Employment Agency Act 1971 and is primarily a supplier of labour into various industry sectors, including the cleaning industry and therefore the complaint of unfair dismissal should be made against the end user and not the respondent.

Therefore, with respect, if the WRC decides in favour of the complainant then any redress should be sought from the end user/third party and not the respondent.

The company attached to its submission their Employment Agency licence.

Complaint Reference: CA-00028604-02 Minimum Notice:” I agree that the complainant is entitled to four weeks statutory notice. I do not contest this.”

Complaint Reference: CA-00028604-003 Hours of Work:” The complainant is owed holiday pay. She did not request this from our Payroll. However, outstanding Holiday pay will be paid to her account on the 5th December 2019. She is entitled to 58 hours holiday pay at €10.80 hour. 714 hours worked in the 12 months prior to her role being made redundant @ 8%=58 hours.”

The respondent concedes Complaint CA-00028604-002. On the facts of this case I determine that the complaint is well founded and is entitled to four weeks’ notice. Section 12 of the Minimum Notice and Terms of Employment Act 1973 provides for a direction to be made to the employer to pay the employee compensation for any loss sustained by the employee by reason of a contravention. I direct that the employer(respondent) shall pay the complainant 4 weeks pay based on 15 hours worked per week at an hourly rate of €10.80 per hour which amounts to €162 per week and a total amount of €648.

The respondent concedes Complaint CA-00028604-003. On the facts of this case I determine that the complaint is well founded. It is agreed between the parties that the complainant is owed 58 hours holiday pay at €10.80 per hour which amounts to €626.40.

Section 27 of the Organisation of Working Time Act 1997 states:

a)      “declare that the complaint was or, as the case may be, was or not well founded.

b)      “require the employer to comply with the relevant provision”

c)       “require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 year’s remuneration in respect of the employee’s employment.

I declare that the complaint is well founded and require the respondent company to comply with Section 19(1)(c)

“8 per cent, of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”

The complainant worked 714 hours in the 12 months prior to her role being made redundant @8%=58 hours at the hourly rate of €10.80 per hour=€626.40.

The respondent is required to pay the complainant €626.40 in holiday pay.

The employee is due holiday pay since February 2019 and the employer is on notice of this and has failed to comply with the relevant provision. As is just and equitable having regard to all the circumstances I require the employer to pay compensation of 4 weeks pay which is €162 x 4=€648 as compensation to the employee.

Complaint Reference: CA-00028604-001 Unfair Dismissal:

The respondent did not attend the hearing and did not afford the complainant an opportunity to cross examine or to give oral evidence to the hearing to assist with the investigation relating to the complaint.

The complainant states that she was part of a managed service contract and worked solely under the supervision and direction of the respondent who employed her and not under the supervision and direction of the company where they work.

The respondent company did make a written submission as already detailed.

The Unfair Dismissals Act 1977 as amended at Section 1 states:

“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.

In the respondent’s written submission, they state that the role was made redundant on the 18th of February 2019. On the facts the service provided to the external company were no longer required in that building when they relocated. The respondent may have lost that service contract; however, that does not mean that the role of cleaner and her employment had been made redundant. There is no evidence of any communication from the respondent to the employee informing her of a risk of redundancy, of a consultation process, of her statutory redundancy payment, of her notice period, of any outstanding monies owed to her. I determine that the Employer has acted unreasonably by act and omission and deem the complaint of unfair dismissal to be well founded. The employee has been abandoned by her employer, who has decided to walk away from their statutory obligations and who have deliberately set out to pay nothing to her. She has been unfairly dismissed.

The respondent stopped providing work to the complainant on the 18th February 2019 and stopped paying her.

Section 6(7) of the Act states:

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

In the respondent’s written submission, they state that because they are an Employment Agent they are not liable under the Unfair Dismissals Act and they cite section 13 of the Unfair Dismissals (Amendment) Act, 1993 in support of their position which 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 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)      ………..

c)       any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person

The company cites Diageo Global Supply v Mary Rooney [2004] ELR 133 and Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 to support its position that the third person in this case who the cleaning service was provided to is liable.

In Diageo the Labour Court held that the claimant had entered into a contract with Diageo and had not had any contractual relationship with the agency. In Dacas the Court of Appeal of England and Wales held that an employee cannot qualify as an employee unless there is a contract which provides for mutuality of obligation coupled with control. This goes to the heart of the matter in contention. Who controlled the complainant’s work?

The complainant unambiguously states that the respondent controls her work and provides a management contract service to the third party. The fact the respondent holds a licence to be an Employment Agency does not mean that because of that fact her employment contract was with the Third party, it was not. The respondent company in its name is referred to as anonymised Outsourcing Ltd. It provided cleaning services to the third party company as distinct from providing labour under the control of the third party. The complainant to support its position cities Tesco Ireland Limited v Marek Pawlisiak [EDA1823] where the Labour Court held the provider of the service Noonan Services Group Limited to be the employer and not the third party Tesco.

On the facts of this case and the evidence presented I determine that the complaint is well- founded, and the complainant was unfairly dismissed by the respondent who is deemed to be the employer for the purposes of the Unfair Dismissals Act. The respondent controls the employee’s activities and provides a management service to the third party. The mutuality of obligation and control is clearly between the complainant and the respondent and for this reason the claim is upheld against the respondent and not the third party.

At the date of the hearing the complainant had not found work which she attributes to her modest English language proficiency. She estimates that it will take a further 10 weeks to find suitable work. I have considered re-engagement and re-instatement; however, allowing for how the employee has been treated to date, have determined compensation to be the appropriate redress.

An employee has a duty to mitigate loss and while her poor English has impacted her ability to gain another cleaning role, the length of time claimed of up to 52 weeks is too long-42 weeks actual loss and 10 weeks prospective. The complainant is entitled to loss of her statutory redundancy rights. In total, I award the complainant compensation of €4700 for the financial loss arising from the Unfair Dismissal based on 6 months loss of earnings and statutory redundancy.

The respondent concedes Complaint CA-00028604-002. On the facts of this case I determine that the complaint is well founded and is entitled to four weeks’ notice. Section 12 of the Minimum Notice and Terms of Employment Act 1973 provides for a direction to be made to the employer to pay the employee compensation for any loss sustained by the employee by reason of a contravention. I direct that the employer(respondent) shall pay the complainant 4 weeks’ pay based on 15 hours worked per week at an hourly rate of €10.80 per hour which amounts to €162 per week and a total amount of €648.

The respondent concedes Complaint CA-00028604-003. On the facts of this case I determine that the complaint is well founded. It is agreed between the parties that the complainant is owed 58 hours holiday pay at €10.80 per hour which amounts to €626.40.

Section 27 of the Organisation of Working Time Act 1997 states:

a)      “declare that the complaint was or, as the case may be, was or not well founded.

b)      “require the employer to comply with the relevant provision”

c)       “require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 year’s remuneration in respect of the employee’s employment.

I declare that the complaint is well founded and require the respondent company to comply with Section 19(1)(c)

“8 per cent, of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”

The complainant worked 714 hours in the 12 months prior to her role being made redundant @8%=58 hours at the hourly rate of €10.80 per hour=€626.40.

The respondent is required to pay the complainant €626.40 in holiday pay.

The employee is due holiday pay since February 2019 and the employer is on notice of this and has failed to comply with the relevant provision. As is just and equitable having regard to all the circumstances I require the employer to pay compensation of 4 weeks’ pay which is €162 x 4=€648 as compensation to the employee.

Complaint Reference: CA-00028604-001 Unfair Dismissal:

On the facts of this case and the evidence presented I determine that the complaint is well- founded, and the complainant was unfairly dismissed by the respondent who is deemed to be the employer for the purposes of the Unfair Dismissals Act. The respondent controls the employee’s activities and provides a management service to the third party. The mutuality of obligation and control is clearly between the complainant and the respondent and for this reason the claim is upheld against the respondent and not the third party. The complainant is entitled to loss of her statutory redundancy rights. In total, I award the complainant compensation of €4700 for the financial loss arising from the Unfair Dismissal based on 6 months loss of earnings and statutory redundancy.