Complainant

Respondent

Anonymised Parties

Temporary Agency Worker

Employment Agency

Representatives

  Self

Mary-Jane Andrews Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00040121-001

15/09/2020

The employee was a temporary agency worker with the employment agency.  The employee was given an assignment with a hirer from September 2019 for six months.  In April 2020, during the first lockdown arising from the COVID-19 pandemic, the assignment was terminated.  In May 2020 the employees contract with the employment agency was terminated.  The employee claims to have been unfairly dismissed without notice.  The employer rejects this claim.

The employee entered into a contract with the employment agency in September 2019.  An assignment was offered with a hirer commencing on 17 September 2019.  The terms of the assignment were for work for 37 hours per week at a rate of €14.58 per hour.  The rate was increased to €14.65 per hour in January 2020.

In March 2020, due to the COVID-19 pandemic, certain health and safety restrictions were introduced.  Workers, other than essential workers, were required to work from home.  The employee began to develop symptoms on 17 March 2020 and was required to isolate.  The employee was in isolation from 17 March to 01 April 2020 at which time ze received a negative Covid test result.  The employee informed the hirer that ze was available for work from 07 April 2020.  The employee, due to a pre-existing medical condition, requested to work from home.  The hirer had at that time closed some offices and re-deployed some of their directly employed staff to different duties.  The hirer informed the employee on 09 April that the assignment was to be terminated.  The employee was paid one week’s pay in lieu of notice.

The employee stated that at no time was ze informed by the employment agency that the termination of the assignment would bring the contract with the agency to an end.

In or around March / April 2020 the employee raised queries with the employment agency about pay, overtime, payment for annual leave, access to other assignments and access to permanent vacancies with the hirer.  The employee experienced difficulties in having the complaints responded to by the employment agency.  The employee had been given a contact person in the employment agency to deal with on all matters relating to the assignment.  When the complaints were not being responded to by that person the employee raised the complaints with the HR Director.

The employee failed to obtain an answer to the complaints and then requested a copy of the formal complaints procedure.  This was not provided to the employee. 

The pay issue relating to a special payment for the period the employee was in isolation was resolved and a payment for 12 days was made to the employee.  The other issues relating to overtime payment, access to other assignments and access to permanent vacancies were not resolved to the employees satisfaction.

The employee stated that one week after the request for the formal complaints procedure ze discovered, on the Revenue account, the contract with the employment agency was terminated.  The employee asserts that ze was unfairly dismissed by the employment agency for attempting to raise complaints. 

Since the termination of the contract the employee contends to have been black listed as other jobs, for which ze was suitably qualified, became unavailable.  The employee registered for an advertised role on 24 August 2020 and was then informed on 31 August 2020 that the roles were not being progressed at that time.

The employee submitted the dispute to the Workplace Relations Commission on 15 September 2020.

The employer disputes the claim in its entirety.

The employer, an employment agency, entered into a contract with the employee in September 2019.  The employer issued a Statement of Terms of Employment of Temporary Workers to the employee.  The terms of engagement constituted a contract for temporary agency work between the employer and the employee whereby the employee would be assigned to provide services to clients.

The employee was given an assignment with a client commencing on 17 September 2019.  That assignment was terminated in April 2020.  The employee was given notice of the termination by the hirer on 09 April 2020 and was paid for one week in lieu of notice.

The employer stated that the employer and the employee did not engage in communications regarding finding the employee alternative work assignments because there was a scarcity of roles available.  At that time employers were reluctant to recruit new candidates given the uncertainty associated with the early stages of the pandemic.  Arising from that situation the employment agency terminated the employment of several temporary agency workers and reduced the working hours of several of its permanent employees.  These decisions were taken as a direct result of the uncertainty arising from the pandemic.

The employer stated that the employee had been informed of the termination of the contract.  It was denied that the employee was blacklisted by the employment agency for other vacancies. The structure of the organisation is such that different sections deal with different areas of employment and one section would not be aware of activity in another section.  Specifically, an issue with accounts would not be known about by recruitment sections.

The employer stated the employee was not unfairly dismissed and the termination of the contract with the employment agency was due to the employment situation arising from the pandemic.

CA-00040121-001

Referral of a dispute under Section 13 of the Industrial Relations Act, 1969

The employee claims to have been unfairly dismissed by the employment agency.  This claim is about the termination of the contract between the employee and the employment agency and not about the termination of the assignment with the hirer.

The employee and the employment agency entered a contract whereby the agency would assign the employee to provide services for a client (hirer).  The employee was assigned to a client on 17 September 2019.  The assignment was terminated by the hirer on 09 April 2020. The employee was paid for one week in lieu of notice.

The employment agency subsequently terminated its contract with the employee.  The reason for the termination of this contract is in dispute.  The employee is strongly of the view the contract was terminated because of complaints raised.  The employer stated the termination was due to the uncertain employment environment arising from the pandemic.  There is no dispute about the fact that the contract was terminated in May 2020.

Having carefully considered the submissions and being aware of the prevailing employment environment due to the pandemic I am satisfied that the reason for the termination of the contract was not because the employee made complaints but was due to the uncertain employment environment.  However, I am satisfied that the employee was not properly notified of the termination of the contract.  No copy of a notice of termination was provided to me.

It was unfair of the employer to terminate the contract without notice to the employee. 

The employee stated that ze did not obtain other employment for 5 months.  However, if the contract between the employee and the employment agency had remained in place there was no liability on the employment agency to make any payment outside of assignments.  As there was no certainty about when another suitable assignment might have been available it is impossible to calculate a loss suffered by the employee resulting from the termination of the contract.

I find it was unfair and unreasonable conduct by the employment agency not to inform the employee of the termination of the contract.  I recommend that the employment agency pays to the employee €1084.10, equal to two week’s pay at the rate applicable on the last assignment, in compensation for the unfair manner of the termination of the contract.

CA-00040121-001

Referral of a dispute under Section 13 of the Industrial Relations Act, 1969

I find it was unfair and unreasonable conduct by the employment agency not to inform the employee of the termination of the contract.  I recommend that the employment agency pays to the employee €1084.10, equal to two week’s pay at the rate applicable on the last assignment, in compensation for the unfair manner of the termination of the contract.

Industrial Relations

Dispute

Unfair Dismissal

Notice