Complainant

Respondent

Parties

Gareth  Jones

CPL Solutions Limited T/a Flexsource

Representatives

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

MP Guinness B.L. instructed by Regan O'Driscoll CC 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-00042505-001

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-00042505-002

15/02/2021

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

CA-00042505-003

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

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

CA-00042505-001 Unfair Dismissal

The respondent submitted that it was the complainant’s employer at all times.

The respondent submitted that the employee was assigned to work with a Pharma client in a highly regulated area and that data monitoring and clarity was the key to an efficient operation.  The respondent added that there is no dispute that the incident happened, the complainant chose to backdate a form and did not raise the matter with a supervisor or anybody else.

The respondent submitted that within the pharmaceutical sector, the position held by the complainant is one of great trust where there must at all times be a chain of evidence to ensure no contamination of product and, by extension, no injury to innocent third parties and/or the requirement to destroy such product.  Every stage of cleaning must be dated and initialled, including when exactly the processing equipment has been cleaned, and when an error is spotted it can be rectified.

The respondent submitted that the process has to be followed precisely as a missed error can result in injury to a patient or hundreds of thousands of euros in costs to the Pharma client if entire batches of a particular product have to be discarded.  The respondent added that the Pharma client must be able to trust the chain of cleaning as recorded.

The respondent outlined the training which was given to the complainant and notified that the matter could have been dealt with differently if the complaint had simply gone to a supervisor. 

The respondent submitted that the initial investigation was carried out by the Pharma client and was referred to the respondent.  The respondent invited the complainant to a disciplinary hearing on 20 August 2020.  He was advised of his entitlement to be accompanied to the hearing, which he declined.  The respondent submitted that at the hearing, he was given a full opportunity to explain his actions and/or to set out any mitigating factors.

The Chair of the disciplinary meeting decided that the complainant had seriously breached the compliance procedures laid down by the Pharma client and that he had made a conscious choice to retrospectively fill in data. His assertion that this had been a mistake on his part was not accepted and determined that the appropriate sanction for his actions was dismissal.  His employment was terminated on 26 August 2020.

The respondent submitted that the complainant was afforded and pursued the right to appeal on the grounds that he felt unfairly treated “due to a split-second human error”.  He attended an appeal hearing on 2 September, conducted by an Associate Director of the Employer Respondent.

The respondent submitted that the complainant’s grounds of appeal were fully considered and ultimately the decision of the disciplinary hearing was upheld.  It was noted by the appeals officer that she gave consideration to “the seriousness of the matter, your length of service, your previous disciplinary record, the mitigating factors brought to my attention, that it was a genuine human error, and split-second decision on your part” and concluded that the sanction imposed was appropriate.

The respondent submitted that the complainant was provided with comprehensive training and had he simply gone to his supervisor, matters would have been different.  However, the complainant chose to backdate documents and not to inform anyone of his actions.

The respondent submitted that it had followed a reasonable course and that this was fair, taking into account all the circumstances of the case.

The respondent submitted that in the case of Connaught Gold v Rafter (UD 48/2014), it was held that “the role of the Tribunal in unfair dismissal cases is not to establish an objective standard but to ask that the decision to dismiss comes within the band of reasonable responses that an employer might take having regard to the particular circumstances of the case.”   The respondent submitted that the test of reasonableness is applied in deciding whether the dismissal of the employee was unfair, which includes the nature and extent of the inquiry carried out by the employer prior to a decision to dismiss and, the conclusion arrived by the employer based on the information resulting from any such inquiry.

The respondent continued that in Hennessy v Read & Write Shop (UD 192/1978), in deciding whether the dismissal of the complainant was unfair, the court applied a test of reasonableness to: “the nature and extent of the inquiry carried out by the Respondent prior to the decision to dismiss the Claimant and to the conclusion arrived at the Respondent that, on the basis of the information resulting from such enquiry the claimant should be dismissed. This requires the Tribunal to consider whether the employee was made aware of all the allegations and complaints that formed the basis of the proposed dismissal, whether the employee had adequate opportunity to deny allegations or explain the circumstances before the dismissal was taken, whether the employer believed that the employee had conducted himself or herself as alleged, whether the employer had reasonablegrounds to sustain the belief, and if so, whether the penalty of dismissal was proportionate to the alleged conduct.”

The respondent also submitted that case of Bank of Ireland -v- Reilly (2015 IEHC 241) wherein Noonan J stated that “the onus is on the employer to establish that there are substantial grounds justifying the dismissal and that have resulted wholly or mainly from one of the matters specified in Section 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the Court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UK EAT/0506/09/DM. I respectfully agree with the views expressed by Judge Linane in Allied Irish Banks -vPurcell 2012 23 ELR189, where she commented (at page 4) ‘references made to the decision of the Court of Appeal in British Leyland UK Limited -v- Swift 1981 IOLR91 and the following statement of Lord Denning MR at page 93 “the correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all of these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonable take a different view.” It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one that EAT or the Court would have taken’”.

The respondent submitted that the decision to terminate the complainant’s employment was within the band of reasonable responses which a reasonable employer might have adopted. The respondent further submitted that the respondent had substantial grounds to terminate the complainant. The complainant undertook training on multiple occasions, which had very clearly outlined to him the importance of contemporaneous recording at the Pharma client facility and so was fully aware of the requirement not only to record the completion of his duties upon completing them, but also to alert the Pharma client to any lapse on his part.

The respondent submitted that on 16 July 2020, instead of drawing the lapse of 14 July to the Pharma client’s attention, he retrospectively and unilaterally attempted to rectify itself, in breach of policy. On this basis he forfeited any trust and confidence that had previously been placed in him as the Pharma client could no longer be assured that his recordings accurately reflected the critical cleaning process.

The respondent submitted that this was a reasonable course of action in all the circumstances.  The respondent submitted that the case law in this area provides that the Adjudication Officer is not required to decide if they would dismiss in the same circumstances or substitute their own view for the employer’s view. The respondent suggested that the appropriate approach is to ask was it reasonably open to the employer to the make the decision it did, which it is submitted it was and that it was within the band of reasonable responses. The decision to dismiss was a reasonable one and the dismissal was fair. The complainant was made aware of all the allegations and complaints that formed the basis of the proposed dismissal and had a full opportunity to deny allegations or explain the circumstances before the dismissal was taken and he fully utilised the appeals process. The issues were such that they went to the heart of the relationship of trust and confidence.

The respondent submitted that the sanction of dismissal was proportionate and justified and the complainant was afforded due process and fair procedures throughout the process and his proceedings pursuant to the Act should be dismissed in their entirety.

CA-00042505-002 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 Pharma client.  Notwithstanding the foregoing, the respondent denied that the complainant did not receive the same basic working and employment conditions as those of the Pharma client.

CA-00042505-003 Minimum Notice

The respondent submitted that the complainant was entitled to and was paid one weeks’ notice.

CA-00042505-001 Unfair Dismissal

The complainant submitted that the respondent in the other complaint was his employer (the Pharma company) and not the present respondent (the employment agency).  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 ultimate 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 record that the cleaning was done.  He submitted that he cleaned the machinery on that date. The complainant submitted that he completed the documentation on a later date (16 July) 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 pharma client company) should have carried out the dismissal. 

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 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-00042505-002 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 pharma company would be.

CA-00042505-003 Minimum Notice

The complainant submitted that he was dismissed without notice.

CA-00042505-001 Unfair Dismissal

The respondent indicated that the complainant was always one of its employees while the complainant contended that he was an employee of the Pharma company 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 passfrom 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 employment agency.  This fact was confirmed by 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 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 Pharma client should be considered to be the complainants 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 and therefore the respondent 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 Pharma client rather than respondent for the purposes of the Unfair Dismissals Acts.

As the complainant is deemed to be an employee of the Pharma client and not of the respondent, I find that he was not unfairly dismissed by the respondent in accordance with the Unfair Dismissals Acts.

CA-00042505-002 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 specifically he was treated differently to any other employee in relation to any of the elements covered by Section 25 of the Act, I find that the complaint is not well founded.

CA-00042505-003 Minimum Notice

Section 13 of the Unfair Dismissals (Amendment) Act, 1993 deems the Pharma client 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.  Having regard to the decision that the respondent is the correct employer, and that the complainant was employed for less than two years, I am satisfied that the employee was entitled to one weeks’ notice.  The respondent submitted that this notice payment was made to the complainant, and this was not contested.  Accordingly, I find that the Act was not contravened.

CA-00042505-001 Unfair Dismissal

Having regard to all of the written and oral evidence presented in relation to this complaint, the complainant is deemed to be an employee of the Pharma client and not of the respondent.  My decision is that the complainant was not unfairly dismissed by the respondent in accordance with the Unfair Dismissals Acts.

CA-00042505-002 Protection of Employees - Temporary Agency Work

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

CA-00042505-003 Minimum Notice

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

Unfair dismissals Acts – correct employer – Unfair Dismissals (Amendment) Act, 1993 – deemed employer – not unfairly dismissed – Protection of Employees Temporary Agency Work – no detail given – not well founded – Minimum notice – paid – not contravened.