Complainant

Respondent

Anonymised Parties

 Complainant

 Respondent

Representatives

E.M. O'Hanrahan Solicitors

Alastair Purdy & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034164-001

03/02/2020

The complainant worked for the respondent from 15 November 2018 until 17 January 2020 as a Warehouse Operative and was earning €25,000 per annum at the time of her dismissal. She claims she had over one year’s continuous service when she was dismissed without being given any reason and this amounts to an unfair dismissal. The respondent says she does not have one year’s continuous service, as required by section 2 of the Unfair Dismissals Act, and therefore is unable to pursue this claim.

The respondent submits the complainant was employed by an employment agency when she started working for them on 15 November 2018. She resigned from the agency and started working for them directly on 10 June 2019 on a fixed-term contract which expired on 31 January 2020. The complainant was dismissed in accordance in accordance with the provisions of this contract and left their employment on 17 January 2020. The respondent contends that the periods of employment cannot be considered continuous and refers to the Minimum Notice and Terms of Employment Act, 1973 which says that all periods of employment are to be considered continuous unless broken by dismissal or resignation. They contend this was further amended by the Redundancy Payments Act, 1967 which stipulates a number of scenarios in which continuous service cannot be broken, including other than the voluntary leaving of the employment concerned by the employee.

They conclude that the complainant resigned her role with the agency, and this broke her service. Her employment cannot be considered continuous from 15 November 2018. Her employment with the respondent must be taken to start on her engagement with them directly on 10 June 2019 and, therefore, she did not have one year’s continuous service when she was dismissed with effect from 17 January 2020 and is therefore precluded from making this claim.

The complainant confirms that she worked for the respondent through an agency from 15 November 2018 to 9 June 2019 and she was a direct employee of the respondent from 10 June 2019 until her summary dismissal with effect from 17 January 2020. She claims these two periods amount to continuous service and she is therefore entitled to make a claim under the Unfair Dismissals Amendment Act, 1993 and relies on section 13 of the Act which provides that “the individual shall be deemed to be an employee employed by the third person under a contract of employment”. Therefore, her service was not broken as she remained an employee of the respondent, there was only a change is status. This means she has more than one year’s service, as required by section 2 of the Act.

She was summarily dismissed on 10 January 2020. No reasons were given for her dismissal and this amounts to an unfair dismissal.

This is a claim for unfair dismissal. Firstly, I have to look at the respondent’s contention that I do not have jurisdiction to hear this claim under the Unfair Dismissals Act as the Claimant does not have the required service as set out in section 2(1)(a) 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 complainant asserts that she does have one year’s service. She started working for the respondent through an agency on 15 November 2018. Then, following an interview, she was employed directly by the respondent from 10 June 2019. Her employment was ended by the respondent and her last date of employment was 17 January 2020.

Evidence given at the hearing confirmed that at all times, from 15 November 2018 until 17 January 2020, the complainant was a Warehouse Operative and there was no change in duties when she moved from working through an agency to being directly employed by the respondent, nor did her pay change. The witness for the respondent also confirmed it is common practice for the respondent to start employing Warehouse Operative’s through an agency. Then, when there are a number of vacancies, the agency workers are invited to apply to be interviewed to be directly employed by the respondent. If successful they are employed on a fixed-term contract for a number of months. Towards the end of the fixed-term contract a decision is made to either let the employee go at the end of the contract and dismiss the employee or offer the employee a further contract.

The complainant’s fixed-term contract states “The Unfair Dismissals Acts 1977 to 2007 will not apply to a dismissal consisting only of the expiry of the fixed term without its being renewed”. The respondent did not give the complainant any reason for her dismissal other than her contract was not being renewed or extended.

Initially, I have to decide if the complainant’s service with the respondent was continuous or amounts to separate employment periods with different employers. It is my view that none of the legislative provisions given by the respondent and the complainant give a definitive answer to the particular circumstances of this case. The questions I have to consider are firstly, whether the respondent was the complainant’s employer during the period of her service through an agency, and secondly, whether or not the complainant broke her service when she changed from working through an agency to be a direct employee of the respondent.

To look at the first question I refer to section 13 of the Unfair Dismissals Act which states:

“Employment agencies.

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, …

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

I am satisfied the employment agency through whom the complainant worked is an employment agency within the meaning of the Employment Agency Act, 1971.

It is my conclusion that the respondent to this claim would have been considered responsible if the complainant had been dismissed whilst working through an agency. However, as the respondent pointed out this did not occur. However, it is clear that the Act meant that the “third person” was responsible for the dismissal and amounts to being the employer in this respect. This did not change when the complainant became a direct employee of the respondent.

The second question is to whether there was a break in service. The provisions of the Minimum Notice and Terms of Employment Act and Redundancy Payments Act, referred to by the respondent, state that employment will not be deemed to be continuous where the employee resigned or left voluntarily. In this case the complainant did leave working through the agency voluntarily. However, she did not stop working for the employer. She carried on doing the same work at the same rate of pay. What occurred was, as asserted by the complainant, a change in status. I conclude that the break in service as laid out above did not occur in the circumstances of this claim.

I, therefore, find in relation to this claim under the Unfair Dismissals Acts that the respondent was responsible if the complainant was dismissed for all the time, she worked for them; from 15 November 2018 until 17 January 2020. Furthermore, given the continued responsibility for the complainant’s dismissal I find there was no break in service. Accordingly, I find the complainant does have “one year’s continuous service” as required by the Act.

In looking at the claim for unfair dismissal, section 6 (1) states: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The respondent contends the complainant’s employment came to an end at the end of a fixed-term contract, to which the Unfair Dismissals Acts did not apply. Section 2 of the Protection of Employees (Fixed-Term Work) Act 2003 states: ““fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event …” The respondent simply dismissed the complainant with no reason when she arrived “at a specific date”.

In this instance the complainant entered into a fixed-term contract until 31 January 2020. On 10 January 2020 the complainant was advised that her contract would not be continued, no reason was given. She was given one week’s notice and, therefore, her last date of employment was 17 January 2020. In these circumstances the respondent dismissed the complainant before the expiration of her fixed-term contract. The contract stated the complainant was on a 3-month probationary period. This was completed on 9 September 2020. There was no evidence given of any issues about the complainant’s performance. Section 6. (1) of the Unfair Dismissals Acts states: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” I conclude the respondent should have provided the complainant with reasons for the early termination of her fixed-term contract before the “specified date” of 31 January 2020 and in the absence of any grounds justifying the dismissal I find the complainant was unfairly dismissed.

For the reasons given above, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find that the complaint is well founded.

The complainant started new employment 13 February 2020, four weeks after her employment with the respondent finished. Up to the time this employment was interrupted by Covi-19 her average weekly earnings were greater than those with the respondent. I therefore award the complainant compensation of four weeks’ pay: €1,923.

Unfair dismissal, continuous service, employment agency