Complainant

Respondent

Parties

Nigel  Miller

Team Obair Recruitment

Representatives

Shonagh Byrne SIPTU

 Muireann McEnery 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-00033762-001

14/01/2020

The complainant commenced employment as a warehouse operative in November 2017.  He was recruited by a recruitment agency, “Agency 1”, and contracted to “Company A”.  This is a company who provides transport and logistics services to another company referred to in this decision as “Company B”.  The contract for these services was given to another recruitment agency, “Agency 2”, in October 2018. The complainant applied to them to so as to ensure that he would continue working on “Company B”’s site.

Following a workplace accident in March 2019 the complainant was out of work until July 2019.  On his return he was told that there was no work for him on the “Company B” site.  He was not provided with any more work by “Agency 2” and he obtained alternative employment.  He was sent his P45 by Agency 2 on 11/10/2019.  His rate of pay was €13 per hour and we worked 40 hours per week.

The complainant also submitted a similar complaint against “Company A” and this was listed as ADJ-00028639.  The second named respondent was not the complainant’s employer but was the company who provided logistical support to “Company B”.   

The complainant worked as a warehouse operative on “Company B”’s site in November 2017.  He was recruited through a recruitment company (“Agency 1”) and contracted by “Company A”. The contract for “Company A” was given to another recruitment company (“Agency 2”) in October 2018 and the complainant was advised to apply through them if he wished to continue working on “Company B”’s site.  In March 2019 the complainant had a serious workplace accident and he was out of work until July 2019.  He did not receive any pay during this time.  As he was medically certified to return to work he contacted with “Agency 2”.  He was advised that he needed an induction, and this could take 3-7 weeks.  After three weeks he made contact again with “Agency 2” seeking to return to work.  He made further contact after about 7 weeks and was advised by “Agency 2” that there was no work available for him.  No explanation was offered.  As no alternative work was provided obtained alternative work in 2019.  The complainant believes that “Agency 2” and “Company A” unreasonably and unfairly towards him.  There was no engagement or contact made with him.  He is claiming constructive dismissal and is seeking compensation for his loss of earnings.

The respondent (“Agency 2”) two preliminary arguments.  Firstly, the complainant is pursuing a personal injuries claim in the Circuit Court and in that claim,  he is seeking loss of earnings. It was submitted on behalf of the respondent that the case of Morgan v Irish Horse Welfare Trust [2014] ELR 42 which dealt with the issue of parallel or duplication proceedings. In the case the then Employment Appeals Tribunal (EAT) adjourned the case because the claimant had instituted High Court proceedings which also included a claim for compensation for loss of earnings.  This case is similar to the instant case.  The respondent cited a number of other cases where it was held that proceedings should be adjourned until other Court actions were heard.

It was also submitted on behalf of the respondent that there is a second preliminary matter is also very significant.  This relates to whether the complainant has the required service to bring a claim under the Unfair Dismissals Acts.  The facts are as follows:

The complainant was originally placed on as temporary assignment on “Company B”’s site in November 2017 through a recruitment company, “Agency 1”.  This assignment finished in October 2018 when the commercial contract between “Company A” and “Agency 1” was terminated.

The complainant commenced another assignment with “Company A” on 22/10/2018 but through the “Agency 2” agency

There was no transfer between “Agency 1” and “Agency 2”.  They are two unrelated entities.    The complainant’s last day assigned to “Company A” was 20/03/2019 and therefore he had 22 weeks of service.  This does not have the requisite service in order to bring this claim.

In view of the significant implications for the case the Respondent requested that the preliminary matters should be decided before considering the substantive matter.

The respondent cited the case of Bus Eireann v SIPTU PTD084/2004 where the Labour Court indicated that a preliminary point should be determined separately from other issues in a case “where it could lead to considerable savings in both time and expense” and there was “a question of pure law where no evidence was needed, and no further information was required.”

The import of the submission advanced by the responded in relation to the preliminary matter had the potential to deprive the complainant of the necessary legal standing (locus standi) to pursue his claim under the Unfair Dismissals Acts and therefore the WRC would have no jurisdiction to hear the substantive case under the Act. 

The hearing was adjourned pending a decision on the preliminary matter.

The complainant’s representative submitted an additional written submission on this point on 27/04/2021. 

It was submitted on behalf of the complainant that he was initially employed by “Agency 1” and advised to transfer to the new recruitment agency, “Agency 2”.  He done this to ensure that he remained contracted to “Company A”.

There was no evidence of a transfer of undertakings suggested or provided and, in that context, I am satisfied that when the complainant moved to “Agency 1” this was a new arrangement.  The fact that he remained contracted to “Company A” is irrelevant.  His employer was “Agency 2” and potentially could be moved to any other site that “Agency 2” had a commercial contract with.

The complainant commended employment with “Agency 1” on 22/10/2018.  His employment ended in March 2019. 

Section 2(1) of the Unfair Dismissals Act 1977-2015 states: 

“This Act shall not apply in relation to any of the following persons:

An employee who is dismissed, who at the date of his dismissal, had less that one year’s continuous service with the employer.”

The complainant does not have the required service to bring a claim under the Unfair Dismissals Act 1977-2015 and therefore I do not have jurisdiction to take this matter further.

The complainant does not have the required service to bring a claim under the Unfair Dismissals Act and therefore the claim is not well founded.

Requisite service.  Unfair dismissal.  Preliminary matter.