Complainant

Respondent

Parties

Krzysztof  Knapik

Parc Aviation Limited

Representatives

Self-represented

 Flynn O'Driscoll LLP

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-00051263-001

22/06/2022

The complainant referred a claim of unfair dismissal against the respondent to the Workplace Relations Commission on 22 June 2022.

The complaint details included the statement that the complainant was “unsure what is the relation between this employer paying my wages” and another entity whose flights the complainant operated.

The respondent’s representative advised at the outset of the hearing that it was agreed by it and the respondent in the linked case that the latter respondent was the complainant’s employer for the purpose of a claim under the Unfair Dismissals Acts 1977-2015. 

The complainant confirmed that he wished to pursue his claim of unfair dismissal against both respondents and in respect of this particular respondent on the basis that it was the company that paid him.

The complainant’s claim against the respondent was grounded on the respondent having been the company that paid him throughout the period of his employment.  The complainant had a few contracts of employment with the respondent, including a contract for work in England.

The complainant submitted that he had acquired full rights as he had worked for an employment agency for more than two years.  He further submitted that the relevant Polish social insurance body did not recognise the respondent as the organisation that paid the complainant’s social insurance premiums.  The complainant submitted that he had evidence to dispute the payslips provided by the respondent and he requested that the respondent be required to produce bank statements showing transfers of salary to his account up to April 2022 and the contract regarding his work in England. 

Summary of complainant’s sworn evidence

The complainant was employed as a pilot.  He flew planes, registered in Ireland, for a third-party.  He conducted the flights in accordance with the direction of the third-party.  His line manager was a captain in the third-party organisation. 

The complainant signed a number of employment contracts with the respondent, and he received remuneration into his bank account from the respondent in a continuous manner.  He referred to 4 bank transfers in 2022 which detailed the respondent’s name.

The complainant was engaged by the respondent as an agency worker in May 2018 and assigned to provide services to the respondent’s client (the “third party”).  The respondent was advised in October 2020 that the third party required the complainant to be directly employed by it and this occurred with effect from 1 January 2021.  As a result of his direct employment with the third party, the respondent ceased to employ the complainant as an agency worker with effect from 31 December 2020.

The respondent raised jurisdictional issues regarding the time limits for referral of a claim of unfair dismissal against it and further that it was not the “employer” for the purpose of an unfair dismissal claim by reason of section 13 of the Unfair Dismissals Acts 1977-2015 (the “Acts”).

It was submitted that the complainant’s claim was statute-barred and that the complainant did not have locus standi to bring a claim against the respondent.

Summary of Christine Traynor’s evidence

The respondent is an employment agency involved in recruitment for the aviation industry.  It supports airlines and businesses across the globe with their temporary work requirements.  In 2018 the respondent had a service agreement with the third party to engage qualified personnel for it in a temporary work capacity.  The witness outlined temporal restrictions in European jurisdictions regarding the employment of temporary agency workers.  She outlined how, as a result of an 18-month restriction in Poland, the complainant moved to an employment contract with the third party at the end of 2020.  With effect from 1 January 2021, the complainant had a direct contractual relationship with the third party.  The witness confirmed that the respondent continued to provide payroll services and contract management services to the third party after 1 January 2021.

The witness was referred to the payslips provided to the complainant on foot of his request for same in May 2023.  She advised that these evidence the change in employer in January 2021 and that from that point on the respondent was only providing payroll services to the third party and there was no agency relationship between it, the complainant and third party in respect of the complainant’s employment.

In response to questions from the complainant, the witness confirmed that the respondent was registered in Poland to pay social security for agency employees and that it paid social insurance for the complainant from 2018 to December 2020.  The witness outlined how the complainant was engaged by it on a temporary agency contract from May 2018 to December 2020 and accordingly it was required to be registered with social insurance in the country where the complainant was based.  When the respondent processes payroll, the individual must be registered with the tax authorities.  The complainant put it to the witness that he disputed the payslips provided to him in respect of the period 2018 to 2022 showing the third party’s name from January 2021. 

The witness was unable to comment on the complainant’s assertion that his contract with the respondent for work in England was still live and had not been terminated.

The witness confirmed that she was not directly involved in the termination of the complainant’s contract of employment with the respondent nor did she have any dealings with the complainant before the termination.  The witness further confirmed that the respondent is a registered employment agency.

The Relevant Law

Section 13 of the Unfair Dismissals (Amendment) Act 1993 makes provision for persons engaged through employment agencies as follows:

“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.”

The time limits for initiating a claim under the Unfair Dismissals Acts 1977-2015 (the “Acts”) are set out in section 8(2) of the Acts as follows:-

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General-

(a)    within the period of 6 months beginning on the date of the relevant dismissal,

or

(b)    within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

Findings

I find, on the evidence before me, that the complainant was engaged by the respondent as an agency worker to provide services to a third-party from May 2018 to December 2020 and that the complainant entered into an arrangement whereby he was directly employed by the third-party with effect from 1 January 2021.  I further find that the respondent provided payroll and other services to the third-party after January 2021 which meant that the complainant received salary payments by way of credit transfer transactions processed by the respondent.  It is noted in this regard that the complainant did not contend receipt of other or additional salary payments from the third-party.  I am satisfied that the respondent’s processing of the complainant’s salary on behalf of a third-party, in and of itself, does not establish a contractual relationship between the respondent and the complainant. 

I do not have jurisdiction to hear the substantive claim of unfair dismissal against the respondent for the following reasons. The claim of unfair dismissal relates to a termination of employment on 24 April 2022.  I have found that the complainant was engaged by the respondent as an agency worker up until December 2020.  There was no evidence before me of any contractual relationship between the complainant and respondent from January 2021.  The claim against the respondent was referred to the Workplace Relations Commission on 22 June 2022.  To maintain a claim for unfair dismissal under the Acts, the complainant must have been an employee of the respondent against whom the claim is initiated.   Section 13 of the Acts is clear and unequivocal that, for the purpose of the Acts, an agency worker placed with a third-party is deemed to be an employee of the third-party and that any liability under the Acts rests with that employer.    In the circumstances, I find that this claim is statute-barred and misconceived and that I do not have jurisdiction to investigate the claim against the respondent. 

For completeness, the complainant asserted a subsisting contract with the respondent in respect of services provided by the complainant in England.  I do not consider the foregoing to be relevant to my adjudication of this claim given the nature of the claim before me, the entity named as respondent to the claim and my findings above.

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

For the reasons set out above, I decide that I do not have jurisdiction to decide the claim pursuant to the Unfair Dismissals Acts against the respondent.

Accordingly, my decision is to dismiss the claim.

Unfair dismissal claim – Jurisdictional issues - Employment agency – Time limits – Dismissal of claim