Complainant

Respondent

Parties

Paul  Sheehan

Boston Scientific Ltd

Representatives

Matthew Maguire BL instructed by   O'Driscoll Solicitors

Sophie Crosbie , Regional Manager, IBEC.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034993-001

03/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034993-002

03/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034993-004

03/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034993-005

03/03/2020

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

CA-00034993-007

03/03/2020

On 3 March 2020, the Complainants Solicitor submitted a number of complaints to the WRC on his behalf. These centered on a claim for unfair dismissal, annual leave, payment of wages and notice on leaving employment. There are parallel proceedings under way for personal injury.

The case first came to hearing on 12 January 2021 on the Remote Platform. In advance of this hearing, the complainant’s solicitor raised a number of concerns regarding the appropriateness of a remote hearing for his client “It Is not feasible to conduct a hearing without the Applicant and the legal advisors being together “. While reference to seeking the intervention of the High Court was mentioned, on clarification, no steps were formalised to or by the Higher Courts.

The case remained within the remit of the WRC until the date of this decision.

As the case evolved and was heard within the parameters of the time zone, now recognised the “Covid 19 “pandemic, through two remote hearings and one in person hearing.

Under Section 31.1.d of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, the WRC is deemed to have the power to make such arrangements, and to adopt such practice and procedures, necessary to enable the conduct of a Hearing by remote means.

Prior to the first   hearing in the case set for January 12, 2021, the complainant had sought and was refused a postponement in opposition to the remote hearing. This was countered by the respondent, IBEC, who wished to proceed to address the preliminary issue surrounding the Unfair Dismissals claim. They pointed to a paucity of written submissions from the complainant side.

I convened the hearing as planned, listened to both parties and decided in the best interest for the integrity of the case and my requirement that the parties focus on the case in full, to grant a brief adjournment on the following direction.  

I have included the recorded outcome of the discussions held on the first day of hearing, January 12, 2021. I have done so to accurately reflect the trajectory of the case, which is long standing at WRC.

I listened to both parties and granted an adjournment to this morning’s hearings on the following basis.

 1. I am keen that this case should run to conclusion within the calendar year from its submission, i.e., March 3, 2020. (correction)

2. I undertook to check up on the status of the Respondent submission dated 21 August 2020.

 3. I undertook to learn to extend the management of the reconvened remote hearing to include utilisation of break out rooms to facilitate communication between representatives and their clients, if needed during the hearing. This was proposed by the respondent.

 4. This is aimed at allaying any concerns regarding either representative taking instructions from clients during the hearing. I will now request a reconvened date for a remote hearing with this in-built support mechanism.

 5. I requested that the Complainant side review the complaint form for any duplication and amend accordingly the claim for Unfair Dismissal and the claim under the Industrial Relations Act, which at present suggest an overlap. I encouraged the parties to liaise with each other to that end, if necessary.

6. I confirmed that the complainant was in possession of all pay slips and I requested a written submission from the complainant, complete with particulars of the claim and an outline response to the respondents completed document.

 7. Given that the complainant has continued out of work, I would request a table of loss and mitigation, please.

 8. The Respondent clarified that Mediation had been attempted by phone in the past and was unsuccessful.

 9. The Respondent helpfully consented to a brief adjournment in the case and expressed a desire to work towards completion.

10. If either party had health issues surrounding the risk of Covid 19, they were advised to appraise the postponements section directly. I look forward to an early resumption of this case and hope all parties remain well in the interim. Thank you for your participation in this morning’s discussion.

Written outline submissions for the complainant were filed on 14 July 2021. written outline submissions for the Respondent had been filed across two dates in August 2020 and January 2021.

Following the issuing of the Supreme Court case of Zalewski v Adjudication Officer and WRC [2021] IESC 24, seismic change followed the WRC format of hearings as the Workplace Relations (Miscellaneous Provisions) Act was enacted in July 2021.

Hearings were now held in public save for special circumstances; Evidence was accompanied by oath/affirmation with resultant penalties for perjury. Decisions were no longer anonymised.

Section 41 (12A) (a) An adjudication officer may require a person giving evidence in proceedings under this section to give such evidence on oath or affirmation and, for that purpose, cause to be administered an oath or affirmation to such person.

(b) A person who, in or for the purpose of proceedings under this section, gives a statement material in the proceedings while lawfully sworn as a witness that is false and that he or she knows to be false shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, and

(ii) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both.

(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.

The case resumed on the remote platform and in the aftermath of the legislative developments on 24 September 2021. On that day, Mr. Fachtna O’Driscoll was joined by Matthew Maguire BL. The Respondent was represented by Ms.  Sophie Crosbie, IBEC.

On that day, the Complainant side clarified that the earlier reference to Judicial Review had not materialised.

The Hearing resumed on 13 January 2023. At this time, the Parties were given two opportunities to resolve the case. Both were unsuccessful.

I had requested copies of both the Complainants Probation Report and Mr. John Kavanaghs declared contemporaneous statement. Neither document was forthcoming as the Respondent said they had been lost to the GDPR rules of the business.

The Complainant was employed as a Product Builder, permanent contract at the Respondent Medical Device Plant from 24 July 2017 to the date of his dismissal on 9 January 2020. While his work base remained the same, the Complainant had two separate employers during this time. The day shift 6.45 am to 7.45 pm and evenings 3pm to 4.45 am. He was paid €12 euro per hour.

1 “Kelly Services Agency Contract “

24 July 2017 – 21 June 2019 (week to week up to 23-month assignment) extended for a two-week period.

2 Boston Scientific Ltd contracts,

 Contract of Indefinite duration, 6 July 2019, subject to probation.

It was the Complainant case that training had been given in 2017, but not on transition to the July 2019 contract.

Response to Preliminary Point 1, Claim for Unfair Dismissal

Counsel for the Complainant submitted that the Respondent is the third-party user in the context of section 13 of the Unfair Dismissals Act and is therefore eligible to proceed in his claim.

Unfair Dismissals (Amendment) Act 1993 (Consolidated)

1993 No. 22

13. Employment Agencies

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.

Counsel submitted that this Amendment came about to protect Agency Workers, with excess of 12 months service, from unfair dismissal by a third-party user. He argued that an anomaly would follow if the “clock for requisite service is to start afresh” from 6 th July 2019, when the complainant had been fully protected before that date.

He was relying on the provisions of “continuous service “in the Minimum Notice and Terms of Employment, 1973, where continuous service is deemed to stand outside of a dismissal or a voluntarily leaving of employment.

In response to the Respondent reliance on Hewlett Packard, Counsel sought to distinguish the facts as the complainant in that case had voluntarily terminated his employment prior to commencing his role with the Respondent. Counsel argued that in the instant case, the complainant had not been dismissed from the Kelly contract, nor had he resigned.

It was argued that the complainants total service amounted to 128 weeks and was sufficient to ground the claim for the purposes of continuity the Act. Counsel argued that section 13 of the Unfair Dismissals Act 1977 should apply in this case as the Complainant had the statutory protection against unfair dismissal as an Agency Worker and it was not feasible t…….

I asked the Parties on any potential for application of the provisions of Protection of Worker, Agency, Act, 2012.?

Counsel contended that the Agency Directive envisaged protection for Agency workers, but there was nothing discrete in this matter.

The Respondent contended that there was nothing in the Agency Act which pointed to continuity of employment.

CA-00034993-001 Claim for Unfair Dismissal

The complainant submitted that he was summarily dismissed at a meeting without warning or without recourse to the employer’s disciplinary process. The dismissal was unfair and prejudiced before the meeting of January 6, 2020.

Counsel outlined that the Complainant had been placed as a worker on the product line from July 2017. He had been awarded an attendance lea way by his supervisor. His mobility on and off the premises was governed by a “Swipe and Tap “system.

The Respondent raised some concerns regarding the Complainants attendance with him and 4 others. The three staff who had previously held “Kelly contracts “of which the complainant was one were dismissed.

The Complainant was handed an envelope which confirmed his dismissal outside of an extension to probation.

He had previously slipped on the floor of the clean room at work and had been absent from work through sick leave / annual leave until his dismissal.

It is the complainant’s case, that the meeting of January 6, 2020, was miscast as a probationary meeting, when instead, it was a disguised investigation on unauthorised absences. The Complainant was not adequately advised that his behaviour was considered as gross misconduct.

The Respondent erred when it applied the corrective Action process. Counsel argued that they failed to follow the company’s own internal procedures.

The meeting of January 6 was an interview with Colin Kenneally, who was the complainant in the reportage of attendance concerns. He had not been provided with notes of other colleague’s interviews, simply the “swipe access report “He was not provided with an investigation report.

Counsel submitted that the finding of gross misconduct was disproportionate. He was treated differently to the other permanent workers found to have taken time away from site also as they were retained in service.

Evidence of the Complainant under oath

The Complainant outlined that he had transferred to the respondent employment from time spent as an agency worker on the “Kelly contract” he said that he had not resigned from the Agency contract. He had not interviewed. He said that he “carried on “.

He described working with his Team Leader and Mr Kavanagh. This involved three people working together on assembly. One long standing employee and one who commenced at the same time as the complainant.

He submitted that he had always met his targets and he had never hidden his mobility. If no parts were available or no other work, he habitually sat in the canteen.

He recalled being invited to a probation review meeting on 18 November 2019. He said that Mr Kenneally was rude when he handed him an envelope. He had no idea what was in it.

He alluded to the faith he had in Mr Kavanagh as he had a clear recall that he had told staff that there was lea way on breaks if the work was done. He recounted that at the time in question, he was supporting a friend on life support in hospital and Mr Kavanagh had told him to “do what I must do “he said that he was troubled coming home to an empty house.

The Complainant was clear that the same Time Management lea way was not as visible with the Team Lead. The Complainant pointed to times spent not working as boring and this prompted his mobility out of the clean room and into the canteen, watching films or sitting in his car. He said that “we were never told not to leave the building “He recalled that lots of people “were in and out “

The Complainant described feeling being “put off “by the January 6 meeting as he felt he had been set up and the outcome predetermined. He contended that there was no proper investigation as Mr Kenneally had adopted the dual role of accuser and executioner. He contended that an appeal was futile.

During cross examination, the complainant accepted that he was aware of the TMS and that he was paid for the hours recorded.

He described the practice of leaving site as being live in both contracts.

As Ms Crosbie put the provisions of the company policy on attendance to the complainant, he freely acknowledged that he had taken Mr Kavanaghs word over the policy. He went on to say that Mr Kavanagh had passed him outside his work base frequently during probation and never commented.

He confirmed that he had not been invited to participate in correction action.

During clarification, the complainant told me that the measurement of his attendance had not predated the 4 weeks. The meeting of January 6 lasted 20 to 30 mins and the meeting on the 9th 5-10 minutes. He had not considered that he should bring a proffered representative.

He was not informed that his dismissal was being considered but “knew he was gone on January 6”.

He explained that the distance from the clean room to canteen to car park to the hospital was circa one mile. He confirmed that he had never been called back from any of those locations.

The Complainant confirmed that Kelly’s had covered the extension in the contract prior to transitioning at the respondent.

When asked to describe what impact his dismissal had on him, he replied that he was humiliated in handing back his badge to security and he was both angry and upset.

He said that the letter of January 9 had been posted. He had not been provided with an investigation report or Mr Kavanaghs statement.

He said that Mr Kavanagh never noticed him missing, nor had he been called back to the clean room.

Evidence of Mr Hargreaves, Colleague at Kelly’s, and the Respondent  

Mr Hargreaves commenced work with the respondent on the same day as the complainant. He had also worked “the Kelly’s contract “

During the final days hearing, Counsel confirmed that Mr Hargreaves had also lost his job with the respondent during a probation review and had taken a case to the WRC, which had been unsuccessful.

Mr Hargreaves told the hearing that “leaving production was normal “and gave an example that nobody “clocked out to go to the garage “He confirmed that he had taken long breaks.

Mr Hargreaves said that he was keen to be made permanent and he had also lost his job at probation review.

He said that Mr Kenneally had encouraged him to come forward on the topic of breaks as “it might benefit him” the matter had lain dormant for 3 months after he had first been approached in October 2019.

During cross examination, Mr Hargreaves confirmed that he had been dismissed prior to Christmas 2019. He was unsure if he had informed the complainant of this as he was on sick leave. He confirmed that Mr Kavanagh told him “Take as many breaks as needed “

He confirmed that he had a separate probation review to that of the complainant.

During clarifications, Mr Hargreaves said breaks were flexible. He recalled that Mr Kenneally had told him to “watch it “about the investigation.

CA-00034993-002   Annual Leave

The Complainant had difficulty in obtaining his pay slips on leaving the business. He was denied his final calculated earnings after the employer deducted money for sick pay which they allege he received in error. He was owed cesser pay of €351.00 for 29.25 hrs public holiday.

CA-00034993-004 Payment of Wages

This claim arose surrounding the payment of sick leave.

CA-00034993-004 Payment of Wages

The complainant lost holiday pay due to him from his final salary payment. The Complainant had delayed sight of a number of pay slips which originated on the staff intranet.

The Complainant submitted that a fixed payment notice should issue against the respondent by virtue of section 4(4) of the Act.

Counsel went on to submit that a deduction of sick pay from wages constituted an illegal deduction in wages.

CA-00034993-005 Payment of Wages

The Complainant was denied holiday pay linked to his time on absence through sickness.

 CA-00034993-007 Minimum Notice

The complainant did not receive any notice of his dismissal nor payment in lieu of same

Counsel for the Complainant submitted a table of loss. He made arguments on the potential scope of any award in relation to the claims made. He submitted the High Court case of Brady and anor. He confirmed that the complainant had not worked since his dismissal.

The Respondent operates a Medical Device Production plant. The Complainant had been an Agency employee at the business from 2017 until his direct hire in July 2019. The employment was terminated for gross misconduct on 9 January 2020.

The claims as raised are denied by the Respondent, who opened with two Preliminary arguments by reading the prepared submissions. The Respondent requested that a decision be reached before the substantive complaints are heard. In relying on the Supreme Court case of Bisi Adigun and the Equality Tribunal. Ms Crosbie submitted that that “it is pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant is clearly the first hurdle that he must cross “

Ms Crosbie went on to contend that the EAT held the power to rule on a complaint at preliminary stage in Employee v Employer UD 969/2009

She relied on the Labour Court case of Bus Eireann v SIPTU PTD 8/2004 “a preliminary point should be determined separately from other issues arising in a case “where it would lead to considerable savings in both time and expense “and where the point was a question of pure law where no evidence was needed and where no further information was required “

1 The claim for Unfair Dismissal is Statute barred as he does not have one years’ service:

The Respondent submitted that the entirety of the complainant’s service with the respondent spanned 6 July 2019 to the date of his dismissal of January 9, 2020. Earlier service as an Agency Worker could not be relied on by him as continuity of service for the purposes of the Unfair Dismissals Act, 1977.

In relying on Pay Pal Europe services and Eimear Musgrave (UD 1630/2012), the Respondent argued that the complainant in that case “only had 46 weeks with her employer. she had no entitlement to include a period preceding the commencement of the 46 weeks. There were two different contracts of employment and different distinct employers before and after the 1 August 2021”.

The Respondent sought application of Desktop Support Engineer IT Services v IT Services Provider at the Labour Court UDD194 Hewlett Packard CDS Ireland limited and Jakub Zajaczkowski

In that case, the Chairman of the Labour court held that “Section 13 of the Act does not operate to create continuity of service for the purposes of the Act for an employee of an employment agency who subsequently becomes a fixed term worker in the employment of an employer to whom he had previously been assigned “

The Complainant was found to have insufficient service to “maintain a complaint under the Act “ 

The Respondent made pointed submissions that the Adjudicator had no legislative capacity to treat both contracts worked by the Complainant as continuous. The contracts were separate documents and two different employing legal entities.

Ms Crosbie submitted that the relevance of section 13 of the Unfair Dismissals Amendment Act, 1993 could not be supported. She contended that this was a protective measure “to hold the user liable for dismissal of an Agency worker “This did not apply to the facts of this case, where the complainant was a direct hire.

She said there was no springboard mechanism in law to bind two contracts together to reach the legislative bar of one service to proceed in an action for unfair dismissal.

Once more the Respondent relied on Hewlett Packard CDS Ireland limited and Jakub Zajaczkowski, at the Labour Court Case, in support.

The Respondent in countering the Complainant reliance on Diageo v Rooney at the Labour Court, submitted that the case had no application. Rooney involved the case of a part time worker, where an agency worker contract is incorporated in the Protection of Part Time Work Act, 2001, she concluded that “no equivalent provision exists in the Unfair Dismissals Act “

2. The Complainant was dismissed during his probationary period

The Respondent argued that the complainant was excluded from coverage by the Act “by reason of the operation of section 3(1) (a) of the 1977 Act. “

Substantive Case:

In addressing the substantive case in the alternative, Ms Crosbie for the Respondent outlined that the complainant was terminated for gross misconduct and therefore no notice was payable.

The Respondent operated a Time Management system which links the personal ID badge to site access and recording the hours worked by electronic means.

1.       Start of working day and recommencement post breaks

2.       Punctuality and availability for work are of pronounced importance.

3.       Exit and egress during the working day must be recorded by swipe.

4.       Deductions apply for excess gowning time.

In the instant case swipe access records were retrieved for 1 October 2019 to 1 November 2019 in the complainants’ records which demonstrated an excessive break over 17/18 shifts worked by him without clocking out or reporting the absence to a supervisor

The Respondent sought to manage this development through a probation review meeting, which was delayed through the complainant’s absence on sick leave following a workplace incident on 12 November 2019. This occurred very shortly after the Respondent raised their concerns with him regarding gaps in his attendance. A Personal Injuries case is running in parallel to this case.

This meeting was held eventually after many attempted false starts (annual leave and sick leave) on January 6, 2020, where the complainant was offered representation, but declined.

The Complainant accepted the veracity of the swipe access review and sought to provide a context and background to the noted absences, which he contended were taken within an authorised culture. He was unable to place a date on the authorisation.

The Respondent hosted an outcome meeting on January 9, 2020, and in the context of an unsuccessful probation, brought the employment to an unsuccessful end. He was the architect of his own dismissal.

The Complainant failed to exercise the pro offered appeal and failed to exhaust internal procedures.

He was not unfairly dismissed.

CA-00034993-001 Claim for Unfair Dismissal

The Respondent representative disputed the Adjudicators jurisdiction in this regard. Ms Crosbie submitted that the attendance concerns had been investigated fairly by the Company and employment ended under the probation policy.

Evidence of John Kavanagh, Team Lead.

Mr Kavanagh had 7 years’ experience in the role. He oversaw evening shift 1 October -15 November 2019. This compromised 70 people across 3 different clean rooms involving 14 different products.

The Complainant was based in the Jet Stream area and Mr Kavanagh denied a culture of permissiveness prevailed. He outlined the clock in system and swipe access records.

Mr Kavanagh said that “a culture of work to finish product “was not operational and permission had to be sought for operators to leave. He qualified this when he said that he may have released the Complainant on occasion but was certain that there was no practice of leaving without “swiping “He confirmed that he worked near but not adjacent to the complainant.

Breaks were 30 20 20 minutes duration in set formation. He said staff were treated like adults. “If someone needs to leave, they can tell me on mobile, I am always around “He could not remember any practice of leaving. During the Communication meeting held on Thursdays, Mr Kavanagh confirmed his authority to clock out employees 5-10 minutes early.

He did not remember being contacted to participate in any workplace investigation.

He submitted that he had not authorised the complainants’ absences.

The practice was not to clock out for breaks.

During cross examination, Mr Kavanagh confirmed that he had been replaced by XXXXX as Day Shift Supervisor.

In response to Counsels question on whether he remembered the complainant asking if he could leave to visit a friend, who was dying, Mr Kavanagh said those absences were either made up of excused leave or holidays.

He clarified that there was “plenty work to do “in the Work area and denied that he would face trouble if he admitted to letting workers take time away from the work area.

He explained that each worker has a hand swipe, and they clock out. He denied mis recording finish times.

He outlined the potential for human resource intervention if transgressions on breaks found.

Mr Kavanagh denied that the Thursday meetings were a non-occurrence.

He was aware that two staff had been retained, but he had not been involved in the Disciplinary procedure. He had been asked if the complainant had ever asked to leave and he said “no “

Mr Kavanagh confirmed at clarification that he had compiled a statement around that time. I requested sight of this statement due to the proximity of Mr Kavanagh to the work area practices. This request was noted .

He confirmed that 250-300 staffed the evening shift. He submitted that there was no overall audit of hours practiced outside of a weekly validation of hours for salary purposes.

He confirmed that he had managed the complainant for over a year and described him as a” Good Fellow “

Evidence of Colin Kenneally, Supervisor.

Mr Kenneally confirmed that as a supervisor his practice was to sign off clock cards on Monday’s day shift. There were 36 product builders on days and 10 on nights.

Mr Kenneally explained the origin of the discovery of identified problems with the complainant’s attendance at work. During a quarterly business meeting, he observed that the complainant was missing. He went to look for him in the clean room. He had been in the Canteen and said he was late. The Complainant directed him to the CC Tv system.

 Mr Kenneally checked authorisation for access to swipe card records and 4 weeks records were revealed, which placed the complainant as a habitual leaver of the workplace for extended periods.

These concerns were channelled through to the Complainants probationary review. He was provided with records of time management records. Mr Kenneally revealed some nervousness in dealing with the issue, as it was a first time. He denied being rude to the complainant.

After he left the area, the complainant slipped on a substance and required first aid and A and E intervention.

Follow up meetings to the time management reports were delayed on four occasions.

Mr Kenneally confirmed that Mr Kavanagh had denied a permissive culture and had re-enforced that information with the complainant. He submitted that the company would have accommodated hospital visits, if asked.

Mr Kenneally said that he could not accept the complainant’s version of events as plausible as he had taken the time mid shift. He was unaware of any rivalry in relation to who could finish first.

The practice of laxness in the time management system was not confined to the complainant, but with the others, it was to a lesser extent.

The Complainant did not appeal the dismissal.

During cross examination:

Mr Kenneally confirmed that the transgressions in time management were managed within a probation review rather than a corrective action policy.

When Counsel put to the witness that the invitation did not flag dismissal as a potential outcome, Mr Kenneally re-affirmed that the probationary review was the live procedure adopted. He outlined the sequential process of the probationary meeting, where concerns were outlined, and the complainant’s response permitted. The matter was investigated which then led to dismissal.

He confirmed that he had asked Mr Kavanagh directly on whether “permissiveness in time management “occurred?

Counsel read out the full minutes of the probationary review and identified deficits, which Mr Kenneally argued were contained in the accompanying report on TMS.

Mr Kenneally confirmed that the complainant was terminated for leaving the site and added that the corrective action plan had not been applied as he had not been instructed to follow it.

Mr Kenneally confirmed that he had gone to the hearing “to assess the situation “he said the other staff members absences were not comparable.

The Complainant had breached trust that was not capable of being dealt with informally. Mr Kenneally was clear that he did not believe the site absence was authorised by the company.

Counsel contended that Mr Kavanaghs pronouncement on a denied permissiveness in TMS was not put to the complainant. Mr Kenneally countered this by stating that he had addressed it in the outcome meeting.

Mr Kenneally confirmed that he was aware that the unfair dismissal Act did not apply to the complainant.

Mr Kenneally clarified that the complainant had left when work was available, and this was unauthorised. This amounted to gross misconduct.

In redirect, Ms Crosbie asked whether absences had been paid? Mr Kenneally confirmed that all absences had been paid. He confirmed that there were no grounds to engage in further enquiry as there no further allegations from the complainant or names of others submitted.

In response to my requests for clarification, Mr Kenneally confirmed that he had not managed the probation as it had been managed by others and had not been taken into consideration in the process which led to dismissal.

He told me that he believed that the complainant was fully aware that his job was at risk at the probation review.

Evidence of Ms Teresa Rice, Senior Business Partner

Ms Rice was new to the Business in 2019. She told the hearing that in early November 2019, an issue had arisen at the human resource dept when concerns were raised regarding attendance records on the TMS. A report was requested and revealed 17 occurrences of absence across 35% of shifts over a 4-week period in the complainants site record. The Complainant did not dispute the accuracy but said that his Supervisor, Mr Kavanagh was aware that he was visiting a friend and that once his work was done, he was permitted to go.

Ms Rice submitted that an investigation had taken place and was incorporated into the probationary process. A Random comparative analysis was undertaken of 7 other staff from the same area were investigated. The three staff on probation lost their jobs. The four “tenured “staff were retained via a combination of disciplinary procedure, formal conversation and no further action taken.

The Complainants probation review was set for 12 November 2019. This was delayed until 6 January 2020, through illness. Ms Rice clarified this meeting had not been prefaced by any earlier probationary meetings.

Ms Rice confirmed that the Complaint had been recorded as having scored “very well in his performance in terms of his attendance, punctuality and team fit “

She was unaware if a Probation Form was used.

Ms Rice confirmed that Mr Kavanaghs statement had been “destroyed “after 1 year in January 2021 through GDPR. The Company had since revised that practice. I explained that I had sought this statement in September 2021, and nobody had appraised me of that development. I expressed a high level of incredulity that a formal request by a statutory Tribunal did not illicit this information any earlier than January 2023 during witness evidence.

Ms Rice went on to state that she had erred on three occasions by issuing the documentation on corrective action to the complainant as this ought to have reflected the Probationary Policy. She added that she had managed 5 probations during 2020.

Ms Rice confirmed that the complainant was dismissed during his probation. She submitted that he had been treated fairly and the matter fully investigated. The level of absence shocked her.

During cross examination, Ms Rice confirmed that she had not considered the “day by hour “records which would have placed the complainant in a work completion zone in 50% of the time. Ms Rice disputed that this record would have assisted. She confirmed that productivity had not suffered by the complainant’s absence, but she contended that “the issue was not that black and white “

Ms Rice had not been aware of the complainant’s service award or company endorsements.

Ms Rice reflected that the complainant was co-operative during the probationary process. He confirmed the TMS records and the reason for his absence in addition to his sitting in the car.

When Counsel put to the witness that the complainant had remained in the building and had been at the workplace, Ms Rice responded that he had not been in his place of work i.e., the clean room. He had erred significantly in his attendance.

Counsel focussed on “data secured “and pointed to the company stated inconsistency. He asked Ms Rice when she had put this “data did not stack up “to the complainant in the January 6 meeting?  After a considerable pause, Ms Rice did not record an answer outside of saying that” she could not point to it, or recall “

She did clarify that it was the severity of the time spent away from the business when compared to others as the reason the complainant lost his job.

Ms Rice confirmed that she had approached Mr Kavanagh regarding his direct reports prior to the meeting of January 6, 2020. She had followed the probation procedural framework.

Ms Rice had considered measures short of dismissal but found that a warning could not be a proportionate sanction in respect of a35% rate of absence vs 75 mins from the tenured staff.

Ms Rice explained that the complainant had transferred to the respondent employment by a conversion. The position had not been advertised or interviewed. the work location had remained the same. She confirmed a mini-induction with the respondent, but no records were exhibited.

Ms Rice addressed the claims for payment of wages and annual leave. She disputed the claim for minimum notice as the complainant had been terminated due to gross misconduct.

In redirect, Ms Rice re-affirmed that there was a two-shift system at the time of this case. the complainant was a salaried employee, and his absence was the highest and “most severe “of the 7 employees reviewed.

CA-00034993-002   Annual Leave

The Respondent accepted that 29.25 hrs public holiday were not visible on the final pay slips and indicated that they were prepared to regularise any outstanding payment in this regard. Cesser pay for annual leave of 40.67 hours was processed and off set against the over payment of sick pay.

CA-00034993-004 Payment of Wages

The Respondent disputed this claim and explained that 97.5 hours of sick pay were over paid when the complainant did not have a strict entitlement to receive payment for sick pay outside of completion of probation.

CA-00034993-005 Payment of Wages

 The Respondent disputed this claim and explained that 97.5 hours of sick pay were over paid when the complainant did not have a strict entitlement to receive payment for sick pay outside of completion of probation. The respondent disputed liability for payment for annual leave on sick leave.

CA-00034993-007 Minimum Notice

The Respondent disputed the claim as the complainant was terminated for gross misconduct. Ms Crosbie argued that consideration should be given to the fact that the company overpaid the complainant for one week on January 16, 2020.

In conclusion, Ms Crosbie restated that two different employments could not be conjoined to demonstrate continuous service under the Unfair Dismissals Act, 1977. As the complainant had less than 1 years’ service, he could not progress his case. He had been sick since that time and unavailable for work

I have been requested to make several decisions in this case. There is also a conjoined Dispute under the Industrial Relations Act, 1969, under separate cover.

In reaching my decisions, I have had regard for the oral and written submissions submitted by both parties. I have listened carefully as the parties managed their respective witnesses through evidence, cross examination, and clarification.

The issue at the heart of this case has been captured by the Respondent by way of a preliminary arguments made on locus standi, that is the contention that a former agency worker, such as   the complainant cannot be permitted to cling to the provisions set down in Section 13 of the Unfair Dismissals Act, 1993 once he takes on new employment at the Hirer? Ms Crosbie has argued that the protections of S. 13 were severed from July 2019 and both contracts were mutually exclusive.

Or whether, as the Complainant side argues, that the period of employment, recorded as being worked through two separate contracts and named employers can be objectively viewed as continuous with the aid of S.13 of the Unfair Dismissals Act (voidance) for the purposes of raising a claim under the 52 weeks continuous service prerequisite the Unfair Dismissals Act, 1977, as amended?

I will return to this later.

I am also conscious of the background of parallel proceedings underway by the complainant for personal injury. The circumstances of this action evolved from a fall at work on November 12, 2019. I am grateful to the parties for a safe navigation of the issues before the WRC, separate to that action.

The Complainant has not found new work and remains on long term illness benefit.

I am very conscious of the life span of this complaint at the WRC since March 2020. I have reflected that the adjournment and postponement granted in the case prolonged matters.

 The case was progressed within the remit of the legislative changes post the Supreme Court case of Zalewski in July 2021. The parties managed the impact of those changes adeptly.

As I discussed with the parties at hearing, the case and its participants have also survived the national pandemic of covid 19, which contributed to the unease leading to the adjournment in January 2021.

It has been a long journey for everybody.

On the last day of hearing, for those very reasons of “longevity “, I told the parties that I would work on their decision and submit by end of February 2023. I regret to say that this has proved impossible as I needed a longer time to consider the arguments made by both sides and the cases relied on. I apologise for that delay.

CA-00034993-001 Claim for Unfair Dismissal

The Complainant has claimed unfair dismissal. His work record did not immediately suggest a clear eligibility to progress such a claim due to pre-existence of two apparently mutually exclusive contracts, one of an Agency Employment and A Direct Hire contract with the Respondent.

My jurisdiction arises from section 2 of the Act to seek to establish whether the complainant is eligible to maintain his claim.

2. Exclusions

(1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him

I am first required to address the Preliminary arguments in relation to the Respondents opening arguments in the case. I appreciate that the Respondent sought a Decision on the preliminary issue alone and without recourse to my hearing the substantive case.

I am unable to accede to this request as I believe that I am obliged to hear both the preliminary arguments and the sequential substantive case to arrive at a balanced decision. There is currently no mechanism open in the presiding Legislation of the Unfair Dismissals Act, 1977 in which the Labour Court have the power to remit a case back to the WRC. Therefore, I have considered it fairer for both parties to receive a composite decision, capable of appeal by either party in turn to the Labour Court.

1 The claim for Unfair Dismissal is Statute barred as the complainant does not have one years’ service:

I have summarised both parties stated positions earlier in this document. I will now seek to resolve the clear conflict between these two positions by exploring the reality of the contracts of employment exhibited by both parties in this case.

The world of the Agency worker has long been described as an A typical Worker. The Labour Market has relied on their flexibility to support a viable workforce.

In Employment Law in Ireland, Cox, Corbett, and Connaughton, second edition, the authors set an important backdrop of observation to agency working.

“In the case of workers appointed on a temporary basis, the employment agency mechanism creates a triangular relationship between the worker, the employment agency, and the end user, Usually, that would involve a formal contract between the worker and the agency and a separate contract between the agency and the end user, but no formal contract between the worker and end user. Thus, the worker would often be paid by the agency, but not do any work for it, while the worker would work for the end user and not be paid directly by it. From the point of view of employment status, these relationships raise legal questions in identifying the employer of the worker “

They go on to engage in a systemic analysis of case law across UK and Ireland in how the Courts have interpreted these relationships over time. It is clear to me that this issue of Agency Workers has consumed many minds and has generated a composite jurisprudence. It has also in the words of Kevin Duffy, former Chair of the Labour Court in Rooney

 At common law the employment status of agency workers was fraught with uncertainty.

From Construction Industry Training v Labour force [1970] 3 All ER 220, at the UK High Court, which rejected the concept of a contract of employment between the worker and end user, but rather “a contract of its own kind “between the worker and Labour Force.

The Irish High Court in a case of holiday pay in Minister for Labour v PMPA Insurance Company [1986] JISLL 215, J Barron followed Labour Force in finding that tri partite relationship manifested in two contracts between the trio of parties.

1 PMPA and the Agency

2 Typist and the Agency (where only rights were derived)

The Parties in the instant case debated the application and relevance or not of Diageo Global Supply v Mary Rooney on appeal to the Labour Court in [ 2004 ]15 ELR 133, 139.  This was a case taken under the embryonic Protection of Part time Workers Act, 2001, where, Ms Rooney, an Occupational Health Nurse, had challenged a reduction of hours as less favourable treatment under the Act.

The Labour Court reflected on

A useful and frequently relied upon test for determining the existence of a contract of service is that formulated by McKenna J. in Ready Mixed Concretes Ltd v Minister for Pensions [1962] 2 Q.B. 497. Here three essential characteristics of a contract of service were identified as follows:

• 1. The employee agrees that in consideration of a wage or other remuneration he or she will provide his or her own work and skill in the performance of some service for the employer.
• 2. The employee agrees, expressly or impliedly that in the performance of that service he or she will be subject to the others control in a sufficient degree to make that other the employer.
• 3. That the other conditions of the contract are consistent with it being a contract of service

The Court went on to find Ms Rooney was an employee of the respondent and made a number of remedial directions to reflect her part time status, such as payment for sick leave and access to the company grievance procedure.

1) The claimant had a contract of service with the respondent company and never had any contractual relationship with the recruitment agency.

(2) While wages were paid though the recruitment agency, consideration passed from the respondent. IRC was at all times acting on behalf of the respondent as its paymaster.

(3) The control test was the appropriate test to be applied to determine if the claimant had a contract of service with the respondent.

The Parties were odds on the application of this case to the facts of the instant case. The Respondent argued that the broad definition of employee in the 2001 Act did not match with the definition of employee in the Unfair Dismissal Act

“employee” means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014),, or of a harbour authority, or health board, or a member of staff of an education and training board] shall be deemed to be an employee employed by the authority or board, as the case may be;

Or

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative.

The Complainant argued that Rooney applied as recognition of the “end user “being recognised as the Respondent in the case.

I was also drawn to the case of Dacas v Brook St Bureau (UK) ltd EWCA Civ 217[2004] ICR 1437, where the UK Court of Appeal, where the complainant, a cleaner had been assigned by an Agency to work as a cleaner in a hostel for Wandsworth Council.

A Service Level Agreement existed between the Agency and the Council.  The UK Tribunal found that the complainant had not been employed by either party. The Court of Appeal, while not faced with a direct appeal against the Council wrote obiter through Mummery J, who pointed that “there may be evidence of a pattern of regular mutual contact of a transactional character between Ms Dacas and the Council from which a contract of service may be implied by a Tribunal”.

Mummery J reflected the reality of the triangular working relationship, where three separate parties co -exist in a work setting.

He said that the Council in fact exercised the relevant control; over her work and over her.

“ I approach this question posed by this kind of case on the basis that the outcomes , which would accord with practical reality and common sense , would be that , if it is legally and factually permissible to do so , the applicant has a contract , which is not a contract of service with an employment agency , and that the applicant works under an implied contract , which is  a contract of service with the end user and is therefore an employee of the end user with a right not to be unfairly dismissed . “

I asked the Parties at hearing whether the Protection of Employees Temporary Agency Work Act, 2012, had any bearing on the facts of this case?

Neither Party relied on it.

For my part, I would draw on the stated aim of the Directive 2008 /104/EC at Article 2 “is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring the principles of equal treatment is applied to such workers.”

It was important for me to undertake a comparative analysis of both contracts exhibited by both parties. I did not meet any representative from Kelly’s.

The Contracts:

1 The Kelly Contract 24 July 2017 – 21 June 2019 - 5 July 2019, extension of two weeks applied by Kelly’s.

This reflected “You are employed as a temporary Product Builder and are being placed for the duration of this Agreement to carry out an assignment with the Client. While engaged on this assignment, you shall remain at all times under the direction and control of the Client. “

While the complainant was paid by the Agency, which increased during his tenure, he was required to clock in and out on the client site.

The contract contained a mobility clause which “may require travel to and work at other locations, nationally or internationally “This was not actioned.

Nobody from Kelly’s presented at hearing and neither party relied on or exhibited a Service Level Agreement between the Agency and the Respondent. (Cotter at the Labour Court)

The initial contract was of 23 months duration prior to the extension. Grievance and Disciplinary procedures were particular to the Agency.

2 The Boston Contract: 6 July 2019 to 9 January 2020, signed 4 July 2019

This reflected a position of Permanent Product Builder on €12.00 per hour.

Pension, Sick Pay, Death in Service and Health Care benefits were conditional on “successful completion of 6 months’ probation “

Adherence to policies was required.

Performance review established.

Mobility clause within Cork,

The document was prefaced with “Further to recent discussions, we are pleased to offer you a position “

Neither Party submitted details of these discussions. From my Inquiry, I established that the Complainant had made a seamless transition to commence work as a permanent worker. He did not tender a resignation with Kelly’s or apply for or interview for the Boston contract. The question of past service in terms of any perception of continuity was simply not discussed or addressed by either party.

I am clear that the complainant understood that the Boston contract was favourable to him, and he had no thoughts on continuity on transition.

I have not established the presence of a collective agreement under the Agency Act or understanding at any stage in this case, either in Industrial Relations or Law which visibly protected the complainants service from July 2017 for the purposes of the Unfair Dismissals Act, 1977.

I can understand why the Respondent made such strident submissions on “separateness “of both contracts. The submissions were based on a genuine belief that both contracts existed in splendid isolation and the complainants’ submissions to view them as inextricably linked, were greatly resisted.

If I were to borrow a leaf from Dacas and put on my common-sense hat, I would address both parties in seeking to have a conjoint review of the journey from Agency to Direct Hire worker  going forward via whatever local representative, consultative body exist at the business as it has proved to be a very contentious argument in this case  and not confined to the complainant alone. The wonderful opportunity of replacing temporary employment with permanent employment with abundant benefits should at least have a reflection on or consideration of length of service in accordance with the spirit of Equal treatment.

It is clear to me from the papers and evidence in this case that both Parties believed that the Complainant was converted from Agency Worker to Direct hire through a seamless practice, not accompanied by a specific overarching Agreement or Protocol.

During the course of the third day of hearing, Counsel for the Complainant referred to a pre -existing case taken by Mr Hargreaves against the Respondent. The Respondent confirmed that they had been furnished with an outcome from the WRC. Counsel later clarified receipt. Neither party relied on this decision, which I understand favoured the Respondent.

From a careful review of the submitted paperwork and an in-depth consideration of the evidence, I am clear that in real and everyday activity, the complainant went to work at the Respondent business, in the same workspace and was under the same direct of control of the respondent for his entire time at the business.

The Respondent managed his working life, and he recorded his attendance on their time management system. At the beginning, the complainant said that he was trained by Kelly’s in the early days, but this was not reciprocated on arrival to the Respondent permanently. He worked with virtually the same team. I am strengthened in my view of this from Mr Kavanaghs reflection of the time he managed the complainant. He said that he had known him for over a year. The Complainant spoke about a long-term collaboration with the Team Leader.

I can see an application of Rooney in this regard and a distinction from the Labour Courts analysis of the role of Muhammad Ismail in Occipital ltd v Ismail AWD 185.

In this case, the Labour Court differentiated between an employee on a managed service contract rather than “under a contract of employment by virtue of which he was assigned to work for and under direction and a supervision of a person other than his employer, the respondent “

I find that the complainant in the instant case was under the direction and control of the respondent from the off in July 2017. He had the benefit and protection of Section 13 off the Unfair Dismissal Amendment Act from 1993, a law which provides an Agency worker enforceable right from the outset.

The Unfair Dismissals (Amendment) Act 1993 broadened the scope of the Unfair Dismissal to include agency workers.

13. Employment Agencies

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.

It is also clear that the Safety Health and Welfare at Work Act 2005 recognises the Hirer / end user as their employer.

Section 2(4) of the Safety Health and Welfare at Work Act, 2005 provides that an Agency Worker can look to the Hirer /end User as their employer for the purposes of that Act.

(4) For the purposes of the relevant statutory provisions, where an individual agrees with a 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 another person (whether or not the latter person is a party to the contract and whether or not the latter person pays the wages or salary of the individual in respect of the work or service), then the latter person shall be deemed to be the individual's employer for the purposes of the relevant statutory provisions.

Locus Standi

The question now for me is whether the “seamless transition “to the Boston contract generated or severed any apparent or perceived continuity of employment record and whether the complainant can maintain a case under the Unfair Dismissals Act?

I have reflected on the Respondent reliance on the Labour Court Case of Zajaczkoski and on the Courts interpretation of S.13

Section 13 has nothing whatsoever to do with continuity of service. The purpose of section 13 is to create certainty as regards liability and employment status for the purposes of the Act as respects a dismissal occurring while a person is employed by an employment agency and assigned to a third party…. The Court finds that Section 13 of the Act does not operate to create continuity of service for the purposes of the Act.

The Court did not identify continuity in the agency work followed by fixed term employment in an employment where the complainant had been previously assigned.

In that case, the Court found that the complainant had resigned from his position and by operation of section 1(b) of the first schedule of Minimum Notice and Terms of Employment Act, 1973, his service could not be viewed as continuous.

I have reflected on the Complainant reliance on ADJ 26835, where the Adjudicator found in a claim for unfair dismissal that “the respondent was responsible if the complainant was dismissed for all the time, she worked for them “15 November 2018 until 17 January 2020.

I have also reflected on the EAT case relied on by the Respondent Musgrave v Pay Pal Europe Services ltd, where a complainant with prior agency service 7 weeks preceding direct employment sought the composite service to be regarded as reckonable service under the unfair dismissals Act.

The Deputy Chair stratified the employment to the Agency and did not bind the respondent to continuity as “At no time up to 1 August 2011 was the claimant employed by any party other than GX (agency) who would have been vested with power to move the claimant to an alternative company should the need have arisen.

In the instant case, and in applying an analysis of the reality of the employment relationship between the complainant and the agency and the respondent, I am once more persuaded to adopt the common-sense approach of Dacas.

It is clear to me that the complainant as an Agency Worker, had an implied contract of service with the respondent from July 24, 2017, to the date of his dismissal on 9 January 2020. He worked in the same place and was subject to the Respondent direction and control. This is distinguished from the case of AA Recruitment Ireland v Cotter UDD 12/2021, where the Labour Court found on close scrutiny that the Complainant was directly employed by the Respondent rather than the third person/hirer.

Findings of the CourtIn the individual circumstances of this case, it is difficult for the Court to avoid the conclusion that the Complainant was employed directly by the Respondent as an employee within the meaning of the Acts, when he was assigned to Company C in 2018/2019. The Court has reached this conclusion based on the facts of this case. It finds that whether intentionally or otherwise as envisaged by the Respondent, he was not in reality an agency worker.

On the basis of the foregoing, therefore, the Court finds that the Complainant had locus standi to maintain his claim under the Acts against the Respondent.

It is important to reflect that the Equal Treatment arising from the Directive was enshrined in Irish Law in 2012 post Musgrave.

If I apply a purposive interpretation of the Unfair Dismissals Act 1997, as a statutory protection against unfair dismissal and I wish to do that. I wish to draw on the over arching principle of Equal Treatment which arises from the Agency Act, 2012.

I also wish to draw from the High Court   Decision by Simmons J in the case of Board of Management Community School v Conaty [2020]2IR 394, where a focus was placed on “an informed waiver “in a case where a case taken under the fixed term legislation unearthed a prior and more robust set of rights in a pre-existing permanent contract.

Any agreement which purported to deprive an employee of rights which he or she had already acquired under the 1977 Act could only be characterised as an agreement which purported to “exclude” or “limit” the application of the Act.

Simmons J, in a very logical construct, remarked that it was open to an employee to waive his or her rights to pursue proceedings under the Act “if the waiver was given on the basis of informed consent”.

I have identified that the complainant was hopelessly unaware of any pre-existing rights of protection against unfair dismissal held while he was employed by the agency and in possession of an implied contract with the respondent.

He drifted into permanent employment without considering or waiving any right against statutory unfair dismissal. Perhaps, if this had been discussed, he would have elected to stay with the Agency based in the respondent workspace. I am satisfied that it was not discussed.

The Respondent as stated honestly believed that both contracts were mutually exclusive and did not address any acquired rights already held by the complainant against dismissal.

It was not purposefully omitted, but rather lost in translation to the contract with the greater benefits.

As a consequence, in respect for the acquired rights against dismissal held by the Complainant at the moment of his direct employment with the Respondent, I must accept the Complainant submissions that Section 13 of the Unfair Dismissals Act, 1977 applies in these circumstances.

13.—A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.

I find the Boston Contract is void from the 6 July 2019 start date as the Complainant was not made aware that he was surrendering his acquired rights to the protection of the unfair dismissals act as he formally transitioned employment from an implied contract to that of a permanent contract, nor had he recorded an informed waiver to that end.

It is important for me to state that Agency work originates from an Atypical and fluid work zone, and I am satisfied that the Unfair Dismissals Act 1977 was not designed or enacted to exclude protection for the circumstances of the triangular type of employment central to the facts of this case.

I conclude that the Complainant must be regarded as being in the employment of the Respondent, by operation of Section 13 of the Amended Act, 1993, for the purposes of the Unfair Dismissals Act 1977 from 24 July 2017 onwards.

 The Complainant   did not record an informed waiver of his acquired right to unfair dismissal, which arose under Section 13 of the Unfair Dismissals Amendment Act, 1993, when he became a direct employee of the Respondent on 6 July 2019. Section 13 of the Unfair Dismissals Act, 1977 has therefore, made void the Respondent contract commenced on 6 July 2019.

Jakub Zajackowski distinguished.

I have resolved the first preliminary argument in favour of the complainant. I find that he can maintain his complaint herein.

Second Preliminary Argument:

I have already found that the Respondent direct hire contract is void from the start date. Therefore Section 3 argument relied on by the Respondent is moot.

I would like to take this opportunity to address the respondent reliance on a live probation in this case. Despite my best enquiries, I have not been provided with a Probation Report in this case. I have evidence from both parties that probation was not recorded outside of an extension due to sick leave or the heading of probation review, which served as a prelude to the meeting of January 6, 2020, deferred on many occasions from November 2019.  

3. Dismissal during probation or training

Except in so far as any provision of this Act otherwise provides

(1) This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—

(a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or

(b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.

I have found that the Complainant enjoyed the protection of the Unfair Dismissals Act from 24 July 2017.

I find for the complainant on the second preliminary point.

CA-00034993-001 Claim for Unfair Dismissal Substantive Case

The law on Unfair Dismissal is contained in Section 6(1) of the Act

1)      Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) permits a defence to the Respondent.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

………..

(b) the conduct of the employee,

Section 6(7) allows for an adjudicator to examine the facts of the case to ascertain on application of the band of reasonableness, was the dismissal something that a reasonable employer do in the circumstances.

I have considered the facts of this case very carefully. I have already pointed to how the complainant was perceived in employment terms by the respondent, which was as a new recruit on day 1 service.

I have also pointed to the fact that the complainant approached the change in his employment status blindly.

However, I have found that he can maintain his claim.

Missing Records Germaine to the case:

This complaint is live at the WRC since 3 March 2020. This claim was made short of 8 weeks post dismissal. The Respondent has not retained a Probation Report or Mr John Kavanaghs Statement.

The Respondent has been on notice of impending legal action in this case since March 2020.

I was not presented with a “Storage Limitation “Policy for GDPR or indeed any indication of how the Company has since demonstrated compliance with GDPR when it told me that these records sought at a WRC hearing were not produced. The Respondent went on to say they were destroyed.

I did not have the benefit of a Data Protection Audit which prompted this action. Instead, I know I requested these documents in September 2021. I also know that I was first informed of their “missing status “when I followed it up at hearing in January 2023. I appreciate that Mr Kavanagh was a witness not subject to subpoena. However, I made a request for the statement which he told me he compiled in sworn evidence. 

As this case has centred on a disputed permissiveness in work culture and Mr Kavanagh was a long-term manager of that climate. I believe that his compiled statement in the absence of his formal presence at the probation review amounted to a key document in this case. I have drawn inferences from it being denied  to me.

Findings:

I accept the complainant’s evidence that at no stage from July 6, 2019, was he a participant in a probationary review at the respondent company.

I accept Ms Rice evidence that she did not undertake the probation review. I was not met by any manager who did, nor have I been handed the requested probation review.

I fully accept Mr Kenneally honest account that he was nervous in managing his finding that the complainant had racked up long periods of being away from his base. I fully accept that invitation to attend a probation review meeting dated 12 November 2019 was met by a workplace incident, now subject to a personal injury claim.

I found the delay before the Probation Review Meeting on January 6, 2020, to be obstructive. While I appreciate that the complainant was on sick leave, however, he was also on two weeks annual leave during this period. I found that the complainant demonstrated a very relaxed attitude to this pressing point for the Respondent, which fell far short of what I would have expected from an employee.

I found the three references to the corrective action plan activation by the respondent to amount to poor practice, when the company documents said this policy only applied post probation. Accuracy and precision are vital commodities in management of an employee’s livelihood, whether on probation, or otherwise.

However, above these peripheral points, I have found a distinct lack of fair procedures and natural justice in the circumstances of this dismissal.

While the complainant told me that he believed that his dismissal was a foregone conclusion, I note that this express message was not imparted to him by the respondent. I understand that the Respondent believed that the complainant could be terminated on probation , however natural justice and fair procedures have direct  relevance and application in a considered dismissal where misconduct is at play

In Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court of Appeal allowed an appeal against a decision of the High Court restraining the employer from dismissing an employee during his probationary period on performance related grounds. The Court distinguished the procedural pathway of poor performance differed from the procedural pathway for issues arising from an allegation of misconduct.

In the instant case, the Respondent undertook a desktop review of the undisputed noted absences from the complainants work base. Both sides accept that this problem diverged into a broader desktop review and an application of some penalties or none for the fellow workers, distinguished by Ms Rice as differing in tenure.

In the Respondents honest belief, the complainant was not “tenured “. I have found that he is protected by the Unfair Dismissals Act, 1977.

In this case, the complainant and his witness have both confirmed their perception that they had freedom of movement on the campus and to go to the shop without altering their attendance record.

I did not have the benefit of a comprehensive investigation report in this case. I heard the complainant say that he understood that once his allocated work was done, he was free to move around. I heard Mr Kavanagh say that he had not presided over a culture of such lax standing.

I heard Mr Hargreaves say that he understood the freedom of movement practice. I appreciate that Mr Hargreaves had a “certain skin in the game “However, I found his recollection of a certain flexibility in movement from site to shop to be worthy of consideration.  I heard Mr Kenneally deny the existence of laxness, but immediately qualifying this with a report of company benevolence i.e., they would have supported a planned need to attend a hospital, if asked.

For my part, I understand that both parties were steadfast in their views and recollections of the culture at play. It would have helped me enormously to understand the” real “background to this case, had I had received Mr Kavanaghs statement made at the time of discovery of the reported “excessive movements mid shift “

For my part also, it is not lost on me that the complainant was struggling at a personal level during the time of the 17 absences. He did not reach out for help at the company, but rather just crept off to visit his friend in hospital.

I accept that he was not met with requests to return but given that his first in time contract said that he was to be paid for hours worked and in light of his past experience in the world of work in security, I found his perception of “freedom of movement on completion of tasks “to be myopic.

No workplace could possibly be viewed as viable with that singular thinking. Whatever assurances he took from Mr Kavanaghs reported pronouncement on breaks could not reasonably be applied to the absences captured at the centre of this case. I appreciate that it is not my role to judge the actions at the centre of the case for who was right or wrong, but to concentrate on the procedural pathways. However, I have found it impossible not to comment on both parties’ views on the culture of perceived and denied laxness as it goes to the very heart of this case.

I would have preferred if the Complainant had received a Respondent led induction in July 2019.

 I think it is oversimplified when the absences in this case are presented as one person’s fault. I understand that the Complainant was found as having taken the lions share of the absences within that 4-week period.

I am satisfied from evidence at hearing and through the balance of probabilities that the Respondents time management system was lax. Mr Kenneally told me that it was not audited outside of salary returns and really, I think there may well be a basis to the complainant’s observation that this was a universal practice.

Perhaps this practice could have been healthily and supportively rectified by a Policy / Protocol in November 2019. I found no evidence of remedial action outside of the range of sanctions and none directed at the complainant and his co-workers.

I have to decide whether there were substantial grounds justifying the dismissal? I have found that there were not.

Yes, I understand that the complainant was absent on 17 occasions over 4-week period, however, I found no individualised and fair first step management of that discovery.

I found that the management technique of seeking to manage this in an empty probation framework to be injurious to the complainant.

I found that the Respondent did not complete an Investigation Report or take adequate steps to ascertain the enormity of this practice within the firm by a comprehensive internal or external audit.

I have also found that nobody engaged in a balancing exercise to consider past performance against the transgressions of October 2019.

The Complainant did not avail of the pro offered representation. In this he acted to his detriment as the record of his responses on January 6 showed him as underwhelmed and detached. He did not present any medical evidence on his reported sense of isolation, at home and at work during October 2019.

Many commentators over many years have flagged mutuality of obligation as the cornerstone of an employment contract. What this means is that the employer is bound to offer the work and the employee is expected to undertake it in a reasonable manner.

In the instant case, the Respondent laid the highest possible penalty of dismissal on the shoulders of the complainant. They did so against a 4-week record of serious lapse in attendance. There was no clear organisational memory of his remaining time in employment from July 2017, where I understand his performance was endorsed by the company on a number of occasions.

I was disappointed that the Company led out with mention of a Corrective Action Policy, which was clearly not in the Complainants domain. They then adopted a default position of seeking to manage his exit through a hollow probation policy as it was not prefaced by any records of real time assessment from July 2019.

While I accept that Mr Kavanagh was approached in enquiry of the culture of movement, his responses were not embalmed in a statement and placed before the complainant. Yet that statement was in existence as I have discovered.

I have to draw an inference from its reported destruction that the statement may have supported some of the views expressed by the complainant. I have not found the respondent explanation that the document was destroyed for GDPR reasons to be remotely acceptable in a claim for statutory unfair dismissal.

I would advice the Respondent to strengthen their employment records immediately.

 At the January 6 meeting, Ms Rice undertook to investigate the matter further, yet within 3 days, the complainant was dismissed without receiving an outcome of the further inquiry.

In the absence of a thorough investigation of the culture present in the company, I find that the respondent completely jumped the gun in moving to dismiss the complainant in January 2020.

I understand that the company was genuinely shocked at the chance discovery of laxness in attendance which broadened significantly on further exploration at the Jetstream area, I have found that the investigative process was incomplete, and the circumstances do not amount to substantial grounds justifying dismissal.

I have identified that a series of procedural errors on not recognising the complainants’ acquired rights against dismissal, the positive record of his employment which justified his elevation to direct hire without advertisement or interview in July 2019 and his dismissal 6 months later, without either party seeking to save the employment amounts to the Respondent acting unreasonably in choosing the sole option of dismissal.

I found a distinct lack of compassion and a defined gap in the duty of care owed to the complainant. However, I also found that the Complainant in effect” shut down” from the moment he was provided with the record of his absences, which he did not dispute in November 2019.

I say that the Complainant acted unreasonably in not appealing his dismissal. I do not accept that it would have been futile.

However, taking everything into account. I find that the Respondent cannot rely on Section 6(4) B) on Conduct as their defence.

I must find that the complainant was unfairly dismissed, both substantially and procedurally. However, I found that the complainant did contribute to his own downfall by departing his work base for inordinately long periods of time that bordered incredulity at times.

However, the sanction of dismissal was disproportionate.

The Complainant has succeeded in his claim for unfair dismissal.

CA-00034993-002   Annual Leave /public holiday

The parties have agreed that €351.00 is owed to the complainant as cesser pay for public holiday entitlement.

I find the complaint well founded.

CA-00034993-004 Payment of Wages

I have found that the complainant was hired in the first instance by the Agency, Kelly’s. I found that he had an implied contract of employment with the Respondent for the purposes of the Unfair Dismissal Act.

I have not identified that the complainant was deducted wages illegally through sick leave.

The claim is not well founded.

CA-00034993-005 Payment of Wages

I have found that the complainant was hired in the first instance by the Agency, Kelly’s. I found that he had an implied contract of employment with the Respondent for the purposes of the Unfair Dismissal Act.

I have not identified that the complainant was deducted wages illegally through sick leave.

The claim is not well founded.

CA-00034993-007 Minimum Notice

The Complainant is entitled to recover one weeks pay in lieu of notice. The matter of his over payment by one week is a separate matter.

The claim is well founded.

CA-00034993-001 Claim for Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was unfairly dismissed. I note that the complainant has not found new work and is on long term illness benefit at this time.

I have given some thought to the three remedies available to me in this case. I appreciate that the complainant elected for compensation. I understand that the Respondent was wholly opposed to this claim and expressed serious misgivings regarding damage in trust and confidence between the parties.

However, I am drawn to exploring the option of re-engagement for the parties as a means of curing the procedural deficits on show and allowing for a second chance of employment stability, given the clear passage of time.

I have reflected on this for some time, and I want to order a re-engagement in this case. I have made this decision in light of the flawed procedural framework applied by the Respondent in this case and the real time presence of the complainants stated personal circumstances, where he appeared to “shrink “in terms of his required attendance with devastating consequences. He ought to have flagged this directly with his employer .

I have found that the Respondent operated excessively narrowly in their management of this reality.

The Complainants direct hire position carries enormous benefits. I would like the parties to engage on the remedy permitted in Section S. 7(2) (b) as the remedy which will do justice to the parties.

This is a Company who has the scope to re-engage the Complainant. The Complainant had a positive experience there prior to the events of this case.

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

I order the Respondent to re-engage the complainant on a permanent basis from 24 April 2022 on the following terms.

1         Production of a Medical certificate of full fitness to return to work. Referral to Occupational Health. If any disagreement, a referral to an agreed third medical referee.

2         Repayment of the 17 absences and declaration of full compliance by both parties to time management system plus any planned audits.

3         Return work location to be agreed with Company CEO. Role of Product Builder or Equivalent.

4         Admittance to all company benefits from 24 April 2022 (reconciliation exercise)

5         The period of time from January 9, 2020, to 24 April 2022 to be regarded as an unpaid suspension.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00034993-002   Annual Leave

In accordance with S27 of the Organisation of Working Time Act, 1997, I find the claim is well founded and order the complainant to pay the complainant €351.00 in compensation for the contravention of Section 23.

CA-00034993-004 Payment of Wages

In accordance with section 6 of the Act, I find the claim is not well founded.

I have not identified that the complainant was deducted wages illegally through sick leave.

The claim is not well founded.

A-00034993-005 Payment of Wages

In accordance with section 6 of the Act, I find the claim is not well founded.

I have not identified that the complainant was deducted wages illegally through sick leave.

The claim is not well founded.

CA-00034993-007 Minimum Notice

In accordance with Section 12 of the Act, I find the claim to be well founded. I order the Respondent to pay the complainant €468.32 in compensation in respect of the contravention.

Agency/ Direct Hire, Payment of Wages, Cesser pay, Re-engagement