Complainant

Respondent

Parties

Gareth  Jones

Abb Vie (formerly Allergan Ltd.)

Representatives

Mema Byrne, B.L. instructed by   Crowley Millar Solicitors LLP

MP Guinness, B.L.  instructed by Regan O'Driscoll  Solicitors

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-00042504-001

15/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00042504-002

15/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00042504-003

15/02/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and four witnesses took the affirmation at the outset of the hearing on day one of the proceedings.

The respondent is a pharma company.  The complaint was taken in conjunction with a complaint against an employment agency.  Both respondent parties were represented by the same legal team.

The complainant was dismissed by reason of Gross Misconduct on 20 August 2020.

The finalisation of this decision was delayed due to the impact of Covid 19.

CA-00042504-001 Unfair Dismissal

The respondent submitted that at all material times, the complainant was an employee of the employment agency and denied that it had unfairly dismissed the complainant as it was never the employer.

CA-00042504-002 Protection of Employees - Temporary Agency Work

The respondent submitted that in accordance with Section 2 of the Act, basic working and employment conditions terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to— (a) pay, (b) working time, (c) rest periods, (d) rest breaks during the working day, (e) night work, (f) overtime, (g) annual leave, or (h) public holidays

The respondent submitted that the complainant has not identified in what respect he was not provided with the same basic working and employment conditions, as defined above as any comparable employee of the respondent.  Notwithstanding the foregoing, the respondent denied that the complainant did not receive the same basic working and employment conditions as its employees.

CA-00042504-003 Minimum Notice

The respondent submitted that as the complainant was not an employee, he was not entitled to a minimum notice payment.

CA-00042504-001 Unfair Dismissal

The complainant submitted that the present respondent (the Pharma company) and not the employment agency was his employer.  In that regard, the complainant noted the case of An Agency Worker v Employment Agency, ADJ-00019796 wherein the Adjudication Officer concluded that for the purposes of the Unfair Dismissals Acts the Pharma client is deemed to be his employer.

The complainant submitted that he was responsible along with other employees for the cleaning of equipment involved in the manufacturing of pharmaceuticals.  He submitted that on the day in question, (14 July) there were no copies of the documentation available to complete.  He submitted that he cleaned the machinery on that date. The complainant submitted that he completed the documentation on a later date but backdated it to 14 July.

The complainant submitted that he was questioned regarding the incident by the respondent on 7 August and continued working with them until he took his holidays in or around 15 August.

The complainant submitted that he was given the disciplinary procedures of the recruitment company and that the procedure was held under the recruitment company procedure which differed from that of his employer. 

The complainant submitted that he was unfairly dismissed.  He submitted that his employer, the respondent (the Pharma client company) should have carried out the dismissal not the employment agency. 

The complainant submitted that the entire process was unfair, and the outcome of the process had been predetermined.  He submitted that by consulting with the pharma client, and not informing him, the whole process had been tainted.  The complainant further submitted that there was no substantial ground to justify his dismissal and the fact that he was allowed to stay on with the respondent is indicative that there was no breach of trust.  The complainant submitted that the flaws in the process are fatal to the respondent’s case that no unfair dismissal occurred.

The complainant submitted that he sought alternative employment and was entitled to refuse the position offered to him because of taking the position offered would have pushed him into the poverty gap given that accepting a position would have meant losing his rent allowance.  He submitted that this was a ‘Catch 22’ situation.

The complainant submitted that he was unfairly dismissed, the dismissal was carried out by the wrong party who consulted his employer but gave him no notes regarding the consultation.  He submitted that the entire process is tainted by that factor and is seeking an award for loss of earnings of 4 – 6 months’ salary.

CA-00042504-002 Protection of Employees - Temporary Agency Work

The complainant submitted that by using the employment agency procedures he was treated less favourably than a permanent employee of the respondent would be

CA-00042504-003 Minimum Notice

The complainant submitted that he was dismissed without notice.

CA-00042504-001 Unfair Dismissal

The respondent indicated that the complainant was never one of its employees and offered the case of Diageo, [2004] 15 E.L.R. 133, to support this contention.

Having considered the decision of the Labour Court, I note that the facts of that case differ from the instant case in that although the complainant contended that she never “entered into any contractual arrangements with the employment agency and that they merely acted as the paying agents of the respondent”.

The Labour Court noted as follows:

The Court is satisfied that there was an offer of employment made by Ms Ryan which was accepted by the claimant. Whilst the agreement was not reduced to writing it defined the rights and duties of the parties inter se, and there was valuable consideration. There was also mutuality of obligations in the sense that the respondent undertook to provide work and the claimant undertook to perform that work. Whilst it was agreed that the consideration, in the form of wages, would be paid through IRC, this does not mean that consideration did not pass from the respondent. The Court is satisfied that IRC were acting on behalf of the respondent in paying the claimant's wages from funds provided by the respondent. The law has long regarded it as possible in appropriate contexts that an act which A procures B to do should be regarded as done by A. Accordingly, the Court is satisfied that a concluded contract existed between the claimant and the respondent and that at all material times the claimant worked under that contract.

In the instant case, the complainant provided the contract concluded between himself and the respondent employment agency.  This fact was confirmed by the witnesses for the respondent and witnesses from the employment agency, who indicated that this contract was extended once the initial period of contract concluded.  This latter fact was agreed by the complainant in evidence when he confirmed that he entered into a second contract with the employment agency and that this contract was a written contract.  It was also outlined that the employment agency kept up communication with the complainant in that it indicated to him that he had “exceeded expectations” when extending his contract in April 2019.

The complainant submitted the case of ADJ 19796 An Agency Worker v An Employment Agency it was decided that the respondent was not the correct respondent.  That complainant submitted that following on from the provisions of Section 13 of the Unfair Dismissal (Amendment Act), 1993, the respondent (Pharma client) should be considered to be the his employer.

“Section 13 of the Unfair Dismissal (Amendment) Act 1993 specifically provides that for the purposes of the unfair dismissal legislation, the hirer will be deemed to be the agency worker’s employer and is the correct respondent in any claim for Unfair Dismissal. 

S13 sets out

 “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.”

 I find that for the purpose of this claim of Unfair Dismissal that the Respondent was not correctly named as Respondent as it is not the Complainant’s employer.” 

Having regard to the written and oral submissions of the parties to this claim and the witnesses, I am satisfied that a written contract was in place with the employment agency who maintained regular dealings with the complainant who can be considered to be the complainant’s employer in general terms.  However, the provisions of the 1993 amendment Act deem the complainant to be the employee of the respondent (Pharma client) rather than the employment agency for the purposes of the Unfair Dismissals Acts.

As the complainant is deemed to be an employee of the respondent, I note that no procedures were undertaken by the respondent in relation to the termination of the complainant’s employment following its investigation.  Consequently, I find that he was unfairly dismissed by the respondent in accordance with the Unfair Dismissals Acts.

As to loss of earnings, the complainant outlined that he was looking for work and contacted the employment agency a number of times seeking a position.  The complainant noted that he was looking for jobs online but further noted that he was not qualified for the jobs he found.  The complainant stated that he was looking for jobs in his area as he was a non-driver and could not afford to move to find employment.

A witness from the employment agency gave evidence that there were plenty of production operative jobs available.  This was not contested by the complainant.  It was noted that he employment agency offered him a position in January 2021.  The complainant submitted that when the employment agency offered him a position in his area, he could not afford to take it as it would have meant losing out on rent allowance and accordingly he couldn’t afford to put himself into a ‘poverty trap’ whereby he accepted a job but ended off being less well off.

The respondent submitted that the complainant was seeking a position which had “a lot of boxes to be ticked to support his lifestyle”.  The respondent submitted that the complainant had a duty to mitigate his loss and, in accordance with recent guidance form the Labour Court, that he had a duty to spend a reasonable amount of time every day engaged in job search.  The respondent further submitted that any possible loss incurred should be limited to the point in January 2021 where he was offered a new position but declined it.

Having regard to the submissions from both parties as regards the complainant mitigating his loss, I find that the complainant has not established that he made sufficient efforts to mitigate his loss.  Accordingly, I find that although the complainant has established that he was unfairly dismissed he has not established that he was at a financial loss.

Section 7 of the Unfair Dismissals Acts outlines as follows:

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

Having regard to Section 7(1)(b)(ii) of the Act regarding redress for unfair dismissal and given that the deemed employer did not follow any procedures whatsoever in relation to the dismissal, post-investigation, I find that the equivalent of 4 weeks remuneration is just and equitable in all the circumstances.  The complainant submitted documentation showing that he was in receipt of an hourly rate of €15.99 per hour for a 39-hour week.  Therefore, the equivalent to 4 weeks remuneration amounts to €2,494.44.

CA-00042504-002 Protection of Employees - Temporary Agency Work

Section 25 of the Act deals with complaints in respect of certain contraventions of the Acts namely

·       Section 6 – Basic working and employment conditions of agency workers

·       Section 11 – access to employment by hirer

·       Section 13(1) – offence to charge fees to certain individuals

·       Section 14 access to collective facilities

·       Section 23 – prohibition on penalisation by employer

·       Section 24 – prohibition on penalisation by hirer

The interpretation of basic working and employment conditions contained in Section 2 are as follows:

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

(a) pay,

(b) working time,

(c) rest periods,

(d) rest breaks during the working day,

(e) night work,

(f) overtime,

(g) annual leave, or

(h) public holidays;

Having considered the provisions of the Act, with particular reference to the interpretations contained in Section 2, and to the fact that the complainant has not proffered any evidence as to how he was treated differently to any other employee in relation to any of the elements covered by Section 25, I find that the complaint is not well founded.

CA-00042504-003 Minimum Notice

Section 13 of the Unfair Dismissals (Amendment) Act, 1993 deems the respondent to be the complainant’s employer for the purposes of the principal Act, i.e. the Unfair Dismissals Acts, not for Minimum Notice & Terms of Employment Act, 1973.  In accordance with my finding that the complainant is not an employee of the respondent, I am satisfied that he has no entitlement to a minimum notice payment from the respondent.  Therefore, I find that the Act was not contravened.

CA-00042504-001 Unfair Dismissal

Having regard to all the written and oral evidence in relation to this complaint, my decision is that the complainant is deemed to be an employee and, accordingly, he was unfairly dismissed.  I award the complainant the amount of €2,494.44 compensation which I consider to be just and equitable in all the circumstances.

CA-00042504-002 Protection of Employees - Temporary Agency Work

Having regard to all the written and oral evidence presented in relation to this complaint, my decision that this complaint is not well founded.

CA-00042504-003 Minimum Notice

Having regard to all the written and oral evidence in relation to this complaint, my decision is that the Act was not contravened.

Unfair dismissal – deemed n employee – dismissal established – no financial loss – Temporary Agency Work – no difference in treatment established – not well founded – Minimum Notice – not an employee – no entitlement to notice