Complainant

Respondent

Parties

Amanda  Craddock

Head - Hunt International Limited

Complainant

Respondent

Anonymised Parties

Representatives

Cillian McGovern BL instructed by Lara Kennedy Jones, Crushell Solicitors.

Brian Murray BL instructed by Karen MacNamara, Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048202-001

14/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048202-002

14/01/2022

The Complainant was employed as a legal secretary, employment commenced on 13th March 2000 and ended on 10th September 2021.

This complaint was received by the Workplace Relations Commission on 14th January 2022.

The matters to be decided are as follows:

1.       Was the Complainant dismissed or made redundant and

2.       Who was the Complainant’s employer?

Claim under the Redundancy Payments Act

The Employee in this case was employed from the 13th of March 2000 to the 10th September 2021 at a rate of €650 per week.

The employeeworked for the Mahon Tribunal in Dublin Castle. The Employee in 2000 had been sent to an interview to the Tribunals Offices by Head-Hunt International an Agency.

The Employee was paid by the Agency.

Section 2 of the Redundancy Payments Acts 1967 describes the employer as;

" 'Employer' means in relation to an employee the person with whom the employee has entered into or for whom the employee works under (or where the contract of employment has ceased, entered into or worked under) a Contract of Employment, subject to the qualification that the person who under a Contract of Employment referred to in Paragraph (b) of the Definition of the Contract of Employment is liable to pay the wages of the individual concerned in respect of the worker services concerned shall be deemed to be the individual's employer".

The Unfair Dismissals (Amendment) Act 1993 in Section 13 for the purposes of the Unfair Dismissal Legislation, provides that an individual shall be deemed to be an employee employed by the third person under a contract of employment where the person was engaged through an agency for the purposes of the Unfair Dismissal Acts. That Section does not appear to amend the provisions of the Redundancy Payment Acts and therefore it is contended that the position on it is that the Agency, in this case Head-Hunt International would be the Employer.

The Complainant has filed two complaints with the Workplace Relations Commissions. The first of these, CA-00048202-0001 Unfair Dismissal. The second CA-00048202- 0002 Redundancy. The Complainant alleges that she was employed by the Respondent, Head Hunt International Limited from the 13th of July 2000 to the 10th of September 2020. The Complainant has not provided any factual details in support of her claim that she was unfairly dismissed, or her complaint regarding an entitlement to a redundancy payment.

The only information provided by the Complainant in her claim form is the dates of her alleged employment and her assertion that her complaint is under Section 8 of the Unfair Dismissals Act 1977 and Section 39 of the Redundancy Payments Act 1967.

The Respondent disputes both claims and makes the following submissions in that regard.

BACKGROUND:

Head Hunt International Limited is a recruitment consultancy specialising in the provision of candidates for recruitment in the nursing, medical, dental, healthcare, information technology and construction sectors.

In 2000 the Tribunal of Enquiry into certain Planning Matters and Payments ('the Tribunal') as established by the Minister for the Environment and Local Government (now the Department of Environment Climate and Communications and the Department of Housing, Local Government and Heritage) approached the Respondent in circumstances where it was seeking to recruit a legal secretary for employment by the Tribunal.

The Respondent introduced the Tribunal to the Complainant, Amanda Craddock, who then entered into a relationship of employment with the Tribunal. The Tribunal requested that the Respondent provide a payroll service for the Tribunal to process the Complainant's wages. This arrangement remained in place until the Complainants employment ceased.

Throughout the time of her employment with the Tribunal the Complainant worked as a secretary reporting exclusively to personnel within the Tribunal and had no contact whatsoever with the Respondent other than to send her weekly timesheets to the Respondent and to deal with matters regarding her pay. The Respondent on receipt of the weekly time sheets sent them to a third-party Elite Accounting and Auditing located at Oakley Wood, Tullow Road, Ennis, Co Clare. Elite Accounting and Auditing provide payroll services and it was they who prepared the pay slips for the Complainant and made the transfer of her wages directly to her.

The Respondent generated invoices which it would send directly to the Tribunal for reimbursement of the monies owing to it by the Tribunal. The Respondent is a holder of an Employment Agency License but it has never conducted business as an Employment Agency.

SUBMISSIONS:

It is the Respondents submission that the Complainant was not employed by it and it was in fact employed by the Tribunal.

The Respondent makes the following legal submissions in relation to this.

THE LAW:

The question in this case is whether an employment relationship existed and if so with whom did that relationship exist. The first point to make is that when conducting an analysis of any specific situation limited reliance should be placed on any contractual documentation between the parties themselves. In other words, any label that the parties themselves gives to an arrangement cannot determine the nature of the arrangement, rather that is a question of legal analysis of the factual reality of the relationship. The courts have in determining whether individuals are employees or independent contractors set out various tests including the control test, the entrepreneur test, and mutuality of obligation, and the Revenue Commissioners have published a code of practice to assist in establishing the work status of an individual as recently as July 2021.

What is relevant in this case is the position in relation to agency workers who until relevantly recently were regarded as employees of the agency and not the end user. There have however been an number of important decisions in the UK and Ireland which are relevant.

The English Court of Appeal in the case of Dacas v Brook Street Bureau (UK) limited 2004, concluded based on the facts in that case that had the Wandsworth Borough Council continued to be a party to the proceedings it would have been found to be the employer on the basis that;

•         There was no obligation on the agency to provide Ms. Dacas with work and she was under no obligation to accept work.

•          The fact that the agency renumerated MS Dacas did not mean that it was her employer.

•          Control of Ms. Dacas's day today activities had been exercised by the council. Accordingly, there was no contract of service between the agency and Ms. Dacas.

•         The Court found that the role of the agency (Brook Street) was not that of an employer of Ms. Dacas. Rather it was of any agency finding suitable work assignments for her and, so far as the Council was concerned performing the task of staff supplier and administrator of staff services. The Judge concluded that the only sensible finding was that Ms. Dacas had a contract of service with the Council rather than with the employment agency saying in particular.

"the result of the consideration will depend on the evidence in the case about the relationship between [workers] and the end user and how that fits into other triangular arrangements. In general, it would be surprising if, in a case like this, the end user did not have powers of control or direction over such a person in such a working environment".

The respondent relies on the case of Diageo Global Supply v Mary Rooney EAT determination January 2004. In that case Ms. Rooney had worked part­ time as a nurse at Diageo's Occupational Health Centre at the Guinness Brewery in Dublin since 1991. When she first became aware of a vacancy she applied to the appropriate person in Diageo, was interviewed by Diageo and offered the job. She agreed her hours of work, rate of pay and other particulars of her duties and benefits directly with Diageo.

She was however told at the outset that her wages would be paid through a licensed employment agency, Irish Recruitment Consultant, who throughout the continuance of her employment paid her wages and issued her with P60's. Notwithstanding this Ms. Rooney never met with any person representing IRC and never negotiated with them in relation to her conditions of employment. Ms. Rooney presented a claim to a Rights Commissioners on the basis that she was a Diageo employee and was being treated less favorably than comparable permanent Diageo employees. The matter came before the Labour Court on Appeal.

The Labour Court applied the principles set out Readymix Concrete (South East) Limited v Minister for Pensions and National Insurance and concluded that Ms. Rooney was an employee of Diageo. The Labour Court was satisfied that all the elements of an employee contract existed between Diageo and Ms. Rooney. There was an offer of employment made by Diageo, which was accepted by Ms. Rooney, there was valuable consideration, and there was mutuality of obligation in the sense that Diageo undertook to provide work and Ms. Rooney undertook to perform that work.

The Court also noted that Diageo "directed" Ms. Rooney in her employment at all material times. Increases in pay were negotiated and agreed with Diageo. Ms. Rooney was required by Diageo to be a member of a Trade Union and Diageo paid the Union contribution on her behalf. Diageo determined her hours of work. She worked exclusively at Diageo's Health Centre and had never been assigned to other locations during periods when Diageo did not require her services. In those circumstances, the Court was satisfied that Diageo exercised control over Ms. Rooney in the performance of her work to such a degree to make them her employer.

In a 2007, ruling by the Labour Court in the case of Enterprise Ireland v Irene McMahon, the issue was further re-examined. In this case Enterprise Ireland were appealing a ruling by the Equality Tribunal to the effect that it was the appropriate respondent in an Equality claim taken by Ms. McMahon who was the administrator of the UCD based National Agricultural and Veterinary Biotechnology Center (NAVBC). Before proceeding to a full hearing, the Labour Court had to decide whether the correct respondent in the initial action was Enterprise Ireland or UCD.

In the case of Brightwater Selection (Ireland) Limited v Minister of Social & Family Affairs 2010, the High Court re-examined the issue of agency workers. Gilligan J stated that the Chief Appeals Officer failed to establish if there was mutuality of obligation between the agency worker and the employment agency. The employment agency did not have the power to direct the manner in which the individual conducted her work.

Gilligan J stated however that it should be considered if there was a contract "sui generis" or indeed an alternative category of contract. The court referred to the imaginative approach that the English Court of Appeal has adopted in relation to agency workers in order to take into consideration the atypical nature of their employment. The court in Brightwater was clear that every case must be considered in light of its particular facts and that there is no one size fits all test.

Agency workers maybe involved in working arrangement in two distinct ways. Firstly, where any agency introduces an individual to the hirer business and the individual is then employed by that business. In that scenario, it is usually clear that the individual is the employee of the hirer and has a direct employment relationship with them and all of their rights and obligations that arise in the employment relationship apply as between the employee and the hirer.

The second scenario is where an agency assigns an agency worker to a hirer on a temporary basis. Under such an arrangement, the agency worker is generally neither an employee of the agency nor the hirer business. Rather the agency worker is engaged by an agency under a contract "sui generis", i.e., a unique type of contract. The key consideration in a series of British cases in determining whether an agency will be found to be an employer of an agency worker is that of control over the work of the individual. In other words, because the agency will lack control over the work of the individual and there will be insufficient mutuality of obligation between the agency worker and the agency such an individual is unlikely to be engaged as working under a contract sui generis.

It is the respondent's submission that the Adjudication Officer must have regard to the following facts in this case.

Firstly, the relationship between the complainant and the Tribunal continued for a period in excess of twenty years which in our respectful submission constitutes a permanent relationship and not a temporary one as between her and the Tribunal.

Secondly, it is the Respondents contention that it had no dealings whatsoever with the complainant throughout the twenty plus years of her employment with the Tribunal and this is a significant factor based on the case law as outlined that should be taken into account. Attached at Tab C to these submissions is a copy of a letter dated the 3rd of April 2000, from the Registrar of the Tribunal to Mr. Ray O'Shea of Head Hunt, in which he sets out that the duration of the complainant is not open ended. It seems quite clear however in hindsight that her employment was indeed open ended as it continued for more than twenty years.

Thirdly, the letter of the 3rd of April 2000 clearly concedes that the complainant is working as a secretary reporting to the sole member and his team and that she is required to be flexible and must be prepared to take such other duties as maybe assigned to her by the Tribunal from time to time.

Fourthly, the letter says that Complainant may be assigned other duties outside of normal hours clearly suggesting that it is the Tribunal only that controls her hours which are set out by it as 9.00am to 5.30pm, Monday to Friday. It also says that the Tribunal reserves the right to alter these working hours from time to as had been explained to her prior to her placement.

Fifthly, the letter goes on to state that the Complainant maybe required to work overtime at its discretion. It goes on to identify the complainants normal place of work as the Tribunal's offices in Dublin Castle but reserves the right to require her to work at other locations at the "discretion of the Tribunal".

Sixthly, the letter records how any communications or contact in relation to absences from work are to be made with the Tribunal on the first day of absence before 10.00am and the Tribunal reserves the right to lay her off from work or reduce her hours.

Seventhly, the letter states that in the event that the complainant has any complaints or grievances these are to be dealt with by the office manager, Ms Lane.

Finally, and very significantly the letter records how the termination of the Complainants employment is at the discretion of the Tribunal.

The Respondent submission is that it is clear from this letter which sets out the nature of the relationship as between the Complainant and the Tribunal that it was the Tribunal that had full and exclusive control over the complainant employment which continued for more than twenty years and that it was to the Tribunal only that the Complainant had a duty to perform work.

The Respondent did not have any power to direct the manner in which the Respondent carried out her work. The Respondent lack of control over the work of the Complainant demonstrates that there was an insufficiency of mutuality of obligation between the Respondent and the Complainant to the extent that she was not employed by the Respondent.

Furthermore, it is clear that the Respondents only role in the relationship was to process the payment of the Complainants wages which it did through a third party at the request of and in aid of the Tribunal, and that therefore it is the Respondents respectful submission that the Adjudication Officer should find that the Complainant was either an employee of the Tribunal or was working under a contract sui generis.

CA – 00048202 – 001 – complaint submitted under section 8 of the Unfair Dismissals Act 1977.

This complaint is not well founded.

CA – 00048202 – 002 – complaint submitted under section 39 of the Redundancy Payments Act 1967.

The submission from the Complainant is very clear and straight to the point.

Section 2 of the Redundancy Payments Acts 1967 (as amended) describes the employer as;

"’Employer' means in relation to an employee the person with whom the employee has entered into or for whom the employee works under (or where the contract of employment has ceased, entered into or worked under) a Contract of Employment, subject to the qualification that the person who under a Contract of Employment referred to in Paragraph (b) of the Definition of the Contract of Employment is liable to pay the wages of the individual concerned in respect of the worker services concerned shall be deemed to be the individual's employer".

Agency work was regulated by an EU Directive in 2008 (Directive 2008/104/EC on Temporary Agency Work). The Directive was given effect in Irish law by the Protection of Employees (Temporary Agency Work) Act 2012. The main purpose of both the Directive and the 2012 Act is to provide agency workers with an entitlement to the same basic working and employment conditions as directly employed employees of the hirer. The entitlement to equal treatment with directly employed employees of the hirer extends to conditions in relation to basic pay, shift premium, piece work, overtime, unsocial hours worked, and Sunday work. The definition of pay in the Act does not include occupational pension schemes, sick pay, bonuses maternity pay or benefit in kind.

For the purposes of the Act a temporary agency worker is one who is employed by an agency and is assigned to work for another organisation (the hirer) and does so under the supervision and control of the hirer. In order to come within the scope of the Act the worker must be employed by the agency but managed on a day-to- day basis by the hirer.

In the instant case there is no doubt whatsoever that the complainant was an employee of the Respondent but was under the control of the hirer.

The complaint against this named respondent is well founded and I now order the respondent to pay the complainant her statutory redundancy payment within 42 days from the date of this decision.

The complaint against this named respondent is well founded and I now order the respondent to pay the complainant her statutory redundancy payment within 42 days from the date of this decision.