UDD2112

1.An appeal of an Adjudication Officer's Decision No(s) ADJ-00025684 CA-00032681-001

BACKGROUND:

2.The Company appealed the Recommendation of the Adjudication Officerto the Labour Court on 23 June 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 21 January 2021. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal by AA Euro Recruitment Ireland Limited against the decision of the Adjudication Officer, ADJ-00025684, CA-00032681-001 in a claim of unfair dismissal against made by Mr Padraig Cotter under the Unfair Dismissals Act 1977 - 2015 (“the Acts”).

For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Padraig Cotter will be referred to as “the Complainant” and AA Euro Recruitment Ireland Limited will be referred to as “the Respondent”.

The Adjudication Officer held that the Complainant’s complaint was well founded and awarded him €12,000 in compensation.

The Complainant submitted his claim under the Acts to the WRC on 3rd December 2019. The Adjudication Officer heard the case on 25th February 2020 and his Decision was dated 20th May 2020. The Respondent appealed the WRC Decision on 25th June 2020.

Summary of the Respondent’s Position

Mr David O’Reilly, HR Consultants, on behalf of the Respondent,disputed that the Complainant had been unfairly dismissed by the Respondent. He told the Court that the Respondent is an employment agency, registered under the Employment Agency Act 1971. He said that the Complainant registered as an agency worker with the Respondent on 3rd February 2018 with the prospect of working as a Security Guard on a client site. He was placed with Careys Building and Civil Engineering (hereinafter referred to as “Company C”) at the ESB Windfarm site at Ballyvourney in Co Kerry.

During the course of his placement, an incident occurred on 8^thNovember 2019. The incident resulted in a breakdown in trust between Company C and the Complainant and it advised the Respondent that the Complainant was not to be returned to the Ballyvourney site.

Mr O’Reilly raised a jurisdictional point before the Court and contended that as the Respondent employed the Complainant as an agency worker, it is not the “employer” for the purposes of the Acts. In that regard he referred to Section 13 of the Unfair Dismissals (Amendment) Act 1993 , and therefore, contended that Company C as the ‘hirer’ was responsible for the Complainant’s dismissal. This matter was not raised before the Adjudication Officer.

Mr O’Reilly also raised a further preliminary issue stating that the Complainant had incorrectly named the Respondent in his complaint to the WRC, this matter was also not raised before the Adjudication Officer and the Decision which ensued was in the incorrect employer name. Mr O’Reilly said that the Complainant’s employer wasAA Euro Recruitment Ireland Limitedand notAA Euro Recruitment Group Limitedas cited by the Complainant.

The Court notes that the Complainant contract is in the nameAA Euro Recruitment Ireland Limited, however it was forwarded to him by Ms Mackey, fromAA Euro Recruitment Group.In November 2018 there were a number of letters of correspondence sent to the Complainant from Mr Paul Galgey, HR/HS Manager. These letters were headedAA Euro Recruitment Group Limitedwhile one of the letters was headedAA Euro Recruitment Ireland Limited. These letters concerned the Complainant’s employment and were of some significance in the matters before the Court. They were sent to him just prior to the events which lead to the pursuance of the claim under the Acts.

Furthermore, Mr Galgey gave evidence to the Court. In his evidence he was asked about the letters and reference was made to the different company names on them, he said that he did not consider it important and simply made a mistake in choosing the headed paper.

The Court has considered the preliminary point raised by the Respondent and is of the view that as the Respondent was on notice of the complaint and has participated in the proceedings, there is no breach of natural justice. The Court is guided in this decision by Hogan J. in an appeal to the High Court in the case ofEleanor O’Higgins and University College Dublin and the Labour Court[2013 No. 21 MCA], where he held:

“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). …In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

Having considered the issue raised, as this is ade novohearing the defect in incorrectly citing the Respondent in the Adjudication Officer’s Decision can be adequately cured by the Determination of this Court. Therefore, the Court dismisses the Respondent’s objection.

Summary of the Complainant’s Case

Mr Noel Murphy, Independent Worker’s Union, on behalf of the Complainant, disputed the Respondent’s contention and submitted that there was no question but that the Respondent had terminated the Complainant’s employment. He disputed the Respondent’s contention that the Complainant was an agency worker and held that he was directly employed as a Security Officer with the Respondent. He said that following the incident on 8th November 2019, the Complainant was initially suspended pending an investigation which was abandoned, and he was later placed on lay off and despite alternative positions being advertised by the Respondent, the Complainant was not placed in an alternative position.

Preliminary Issue – Does the Court have jurisdiction to hear the case

The Respondent has raised a jurisdictional point, whichwas not raised before the Adjudication Officer, nevertheless, in ade novohearing of the case the Respondent is entitled to raise it at the hearing of the appeal.In order to consider this issue, the Court proceeded to hear evidence on the question as to whether or not the Complainant was an agency worker or a direct employee of the Respondent. The Respondent furnished the Court with a copy of his contract of employment. The contract makes no reference to the Respondent being an employment agency or to the Complainant being an agency worker.

The Court decided to consider the issue of the employment status of the Complainant as a preliminary issue. The Court made this decision in the interest of efficiency of processtaking account of the Decision of the Adjudication Officer and of the fact that if the Complainant was not an employee of the Respondent within the meaning of the Acts that would be determinative of the appeal in its entirety.

Summary of the Complainant’s Evidence

The Complainant told the Court that he applied for a position as advertised on jobs.ie for a Security Officer with the Respondent. He said that he worked for Mr Paul Galgey, HR Manager with the Respondent and when he saw the advertisements for Security Officers with the Respondent, advertised in November 2019 when he was on lay-off, he contacted him and was told that there were no positions available.

In cross examination, the Complainant was questioned about who gave him instructions on site, he said that he was not supervised by anyone on the site and reported directly to the Respondent. He said that he received his contract of employment directly from the Respondent attached to an email dated 16th February 2018. He said that he received a roster every week by text from Mr Morrissey, Secretary Manager with the Respondent. He said he had nothing to do with Company C, other than an induction course from its Health & Safety Officer. He said that whenever there is a need to report a security issue, he contacts the Respondent, either Mr Galgey or Mr Scanlon or Mr Morrissey. He said that he considered himself a full-time employee of the Respondent. He was not told nor was he led to believe that he was an agency worker. He said that the Respondent was licenced as a security company, they were hiring security personnel and he had applied for and was hired as a “Static Security Guard” as advertised on 24^thJanuary 2018 and was paid by the Respondent.

The witness said that he had extensive experience working as a Security Officer, both in Ireland and the UK working with security companies and that the contract of employment he received from the Respondent was similar to those he had received in other security companies. He said that the Respondent hires out construction workers to the construction industry sector and that he was one of the Respondent’s security personnel. He said that many of the workers on the construction site were agency workers, however, security personnel were not employed in that capacity, as he and the Respondent had to be licenced with the PSA.

The witness was asked how he had applied for the position, he said that he responded to an advertisement where the Respondent advertised for Security Personnel, there was no mention if it being an employment agency, but he was happy that they were registered with the PSA. He said that he was aware that they were providing and tendering for contracts for security services at a number of different sites. He said that he was told by management that he would need to be flexible to attend at different sites if required.

The Complainant told the Court that while employed with the Respondent on the Company C site, he worked on night shifts, commencing at 6.00pm and finishing at 7.00am on weekdays and from 7.00pm to 7.00am when working at weekends. He said that when he was working the site was closed and the site management were not there. He said that he was responsible for looking after the site when it was not working, it was a very large site set out over 19 kilometres so he would spend times driving around the site checking it. He said that if there was anything amiss, he would contact Mr Morrissey and report it.

The witness said that the name on his uniform was the Respondent’s name.

Summary of Mr Larry Ryan’s Evidence

Mr Larry Ryan, Managing Director of the Respondent since 2005, gave evidence on behalf of the Respondent. He said that the Respondent has been registered as an employment agency under the Employment Agency Act 1971, since 2005 and that it also has a PSA licence as it supplies security personnel to its clients. He said that the name of the company is AA Euro Recruitment Ireland Limited trading as AA Euro Security Services. In accordance with the licence requirement it is obliged to have terms and conditions of employment for security personnel in line with PSA requirements. He said that it supplies security personnel only, it does not supply security cameras or monitoring devices. Mr Ryan was asked about the number of personnel the Respondent supplied to Company C, he said that at its peak it supplied 40 construction personnel and 16 security personnel. He said that the Respondent employs direct staff who work in its offices, but that construction and security personnel are hired out as agency workers. He said that the contract of employment had been sent to the Complainant as an attachment to an email on 16 February 2018, after he commenced employment. He said that it was clear from the heading of the email that it was a contract to work on the Company C site, as it specifically mentioned “CAREYS Contract”.

The witness said that when the Respondent agreed on a procurement order with its client, it agreed that Company C would give instructions on the work they require to be done by the workers. He said that the Complainant’s payslip contains the Respondent’s name and not Company C.

The witness said that he had little contact with the Complainant and accepted that he was never informed that he was an agency worker. He said that when it receives an order from Company C, it supplies the personnel required. He said that the general arrangement with the supply of construction workers is similar to the supply of security personnel. He accepted that the advertisement which the Complainant responded to did not mention that the employer was an employment agency and that the successful candidate would be an agency worker. He said that the Complainant was informed that it was a temporary position.

Mr Ryan was asked about how the Complainant was instructed in his work and who gave him those instructions. He said that Company C gave the instructions, as they had overall control. He said that he never gave the Complainant any work instructions. He said that at time of the incident in November 2018 when Company C instructed them not to return the Complainant to its site, the Respondent attempted to seek alternative employment for him in Monkstown, Cork, but there were no vacancies at the time. He said that while there was no obligation on him to do so, he felt he had should make an effort to reassign the Complainant at the time.

Summary of Mr Paul Galgey’s evidence

Mr Paul Galgey, HR, Health & Safety and Training Manager of the Respondent, gave evidence on behalf of the Respondent. He has been employed with the Respondent for 8 years. He said that Mr Andrew Reid, employee of the Respondent, was responsible for placing the advertisement and for the recruitment of the Complainant in February 2018. He said that he had no involvement in the recruitment of the Complainant and accepted that the Complainant may not have been aware that he was recruited as an agency worker as it did not say so in the contract but said he must have known that other workers assigned to the sites were in similar circumstances. He said that he signed off on the contract of employment template, copy of which was provided to the Complainant. He accepted that the contract did not state that the Complainant would be under the control of the client and that it refers to being assigned to various ‘sites’ not ‘clients’. He agreed that the contract specifies the hours of work and makes no reference to the client determining the hours of work.

Mr Galgey was asked about the name of the security branch of the Respondent. He said that in order to secure the PSA licence, the Respondent created “AA Euro Security Services” as a trading name attached to the company name, in order to provide static guarding for construction sites and to distinguish between construction and security.

The witness said that he did not give instructions to the Complainant and he had no control over his work, he said that that was up to Company C in the same was as it was for construction personnel assigned to a client. He said that he did not deal with the financial aspects of company/client contracts. He said that if the client needed additional security personnel it would liaise with the Respondent. He said that the Respondent never mentions that it is an employment agency in its advertisements when seeking employees.

He was asked about the advertised job vacancy which was presented to the Court which indicated that a job for security personnel was advertised for the Respondent on 19th November 2018. He said that such an advertisement could have been on the social media site for weeks at that stage, but that there were no vacancies at the time. He said that had there been a vacancy available at the time he would have placed the Complainant in that position and that the Respondent was actively seeking tenders for work at that time. He said that the contract in Monkstown fell through.

Mr Galgey said that the Respondent’s liaison persons with Company C at the time were Mr Reid, Mr Morrissey, Ms Roche and Mr Scanlon. They were the people who dealt with timesheets, rotas and issues with its security vehicles. He said that the client would determine the area that needed to be secured, the shifts and manhours required to be covered. Each week, Company C would send time sheets to the Respondent, signed off for the previous week, which would then be used for payroll purposes. He said that if there were any issues with discipline, Company C would contact the Respondent to deal with it.

The witness said that the name on the Complainant’s uniform was the Respondent’s name although he stated that the client could be placed on it if client requested.

Findings of the Court

The Unfair Dismissals (Amendment) Act 1993 contain provisions, at section 13, which have the effect that, in any proceedings under the Unfair Dismissals Acts,an agency worker is deemed to be employed by the hirer, as opposed to the employment agency.

The Protection of Employees (Temporary Agency Work) Act 2012 does not amend that provision. Therefore, despite the fact that the employment agency is deemed to be the "employer" for the purposes of the 2012 Act, it remains the case that where an agency worker's assignment is terminated, his or her remedy for unfair dismissal (if any) will be against the hirer, not the employment agency.

Section 13 of the Unfair Dismissals (Amendment) Act 1993, provides as follows:-

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 order to have jurisdiction to hear the Complainant’s claim of alleged unfair dismissal under the Act, the Court must determine whether or not he was an agency worker employed by the Respondent to do or perform personally any work or service for Company C or whether he is an employee of the Respondent as defined by the Unfair Dismissals Acts,viz, an individual who worked under a contract of employment, whether it be express or implied. The Court heard submissions and evidence on this issue and hereby makes a determination on the preliminary issue raised.

There is no doubt that the Complainant worked under a contract of employment with the Respondent and that such contract was in writing stating the terms and conditions of his employment. But the question is was he an agency worker. There is no doubt that the Respondent is a registered employment agency under the terms of the Employment Agency Act 1971 and that it carries on such a business. However, the Court must closely examine the relationship between the Complainant and the Respondent and that between him and Company C, the hirer, to determine his status for the purposes of the Acts. This question will depend on the level of control each had on the Complainant and his work. The Court was presented with a clear conflict of evidence on this matter which has caused obvious difficulties for it in establishing how the claim must be assessed. Nonetheless the Court must seek to reach conclusions based on such evidence as is available.

Having considered the parties’ submissions and the evidence adduced, both oral and documentary, the Court is influenced by the following findings:-

The recruitment and placement of the Complainant
On behalf of the Respondent, Mr O’Reilly told the Court that the Complainant registered as an agency worker with the Respondent on 3rd February 2018 with the prospect of working as a Security Guard on a client site and was placed with a client company, Company C.

There is no evidence to show that the Complainant “registered as an agency worker”. In his evidence to the Court, the Complainant strenuously denied that he was an agency worker, he said that he was never told that, there was no reference to it in any documents or in his contract of employment. He said that he responded to an advertisement that he saw on social media, which he produced a copy of for the Court. The advertisement read as follows:-

“AA Euro Recruitment Group Ltd

24 Jan 2018

Static Security Guard, Cork/Kerry Region. PSA licence, safe pass, manual handling and full clean drivers licence essential. Contact Andrew 051……….”

The Court notes that the advertisement produced for the Court for a position available in Cork in November 2019, (a position which the Respondent accepted it advertised for but said no longer existed at that point), reads as follows:-

“Security Officer

AA Euro Recruitment – Cork

Previous Experience in Security and/or patrolling as mobile security officer in a busy environment. AA Euro Recruitment Group are now recruiting experienced…
Apply with your Indeed CV
19-Nov”Clearly there is no reference to the employer of a successful candidate being an employment agency not that the advertised position was as an agency worker.

Neither of the Respondent’s witnesses were involved in the recruitment process and no witness who interviewed or inducted the Complainant was present in the Court to give evidence.

The Court considers it significant that the contract of employment provided to the Complainant at the commencement of his employment, and furnished to the Court, makes no reference to employment agency/ agency worker. It reads like a contract of employment between an employer and an employee. Furthermore, it is significant that it does not contain the procedures required which the employer will observe before and for the purpose of dismissing an employee, as required by Section 14 of the Acts. Thereby not setting out that it was not the employer for the purposes of the Acts. Such information could have assisted the Complainant when he decided to pursue a claim under the Acts in December 2019. As this preliminary jurisdictional point was not made before the matter came before the Court in January 2021, any such alternative proceedings would be clearly out of time at this point Direction and Supervision of the Complainant

Definitions of an “agency worker”, an “employment agency” and a “hirer” are provided under section 2 of the Protection of Employees (Temporary Agency Work ) Act 2012, as follows:“agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of a person other than the employment agency:

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;
The Court has examined this question of the direction and supervision of the Complainant. The Court was presented with a conflict of evidence on this point. The Complainant was clear that he was under the control of the Respondent and named individual managers that he reported to. He said that he was given his roster each week by one of the Respondent’s mangers and said that any changes to his roster or issues to do with the Respondent vehicles that he used were dealt with by the Respondent. He told the Court that he had no dealings whatsoever with Company C management. Having said that it is clear that they were not present when the Complainant was on duty.

The Court considers it significant that both of the Respondent’s managers who gave evidence to the Court had little or no contact with the Complainant by virtue of their roles. And those named by the Complainant as having such control over his working times and conditions were not present to contradict such evidence. Furthermore, no member of management or supervisor from Company C was presented before the Court to contradict the Complainant’s assertion that he had no dealings with them and did not have any contact with them in his normal shift, which occurred when the site was closed down.

In its evidence to the Court the Respondent said that the name on the Complainant’s uniform was the Respondent’s name although it stated that the client could be placed on it if client requested.

As per Section 6 of the contract the company uniform remains the property of the company (the Respondent) and must be returned immediately on request. Other equipment such as communication devices are issued to employee and must be returned on request of the Respondent. If the employee leaves the company the cost of the equipment/clothing will be deducted from pay.

Secondly, the Court was furnished with a copy of the commercial contract between the Respondent and Company C for the supply of Security Personnel. It is entitled “Sub-Contract Order”. It includes the following:-

• • “Type of Sub Contract : Security Personnel
    Provide Security Personnel as required at the above Project
    
    The Sub-contractor is to comply with the following:-
  • 1. Carry out works as per all [Company C] Site Management directions
    2. Comply with [Company C] Health & Safety Policy”

On the basis of the foregoing, therefore, the Court finds that the Complainant hadlocus standito maintain his claim under the Acts against the Respondent.

Determination

The Court has considered the jurisdictional issue raised by the Respondent in its appeal and determines that the Complainant does havelocus standito maintain the within proceedings under the Acts. Therefore, the Court finds that the Respondent’s appeal on this issue fails and the Court will now proceed to hear the substantive case under the Acts.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
DC	______________________
9 February 2021	Deputy Chairman