Worker

Employer

Anonymised Parties

 An Electronic Assembly Operator

 A Manufacturing Company

Representatives

  Self Represented

 Gore and Grimes Solicitors

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Acts 1969

CA-00043818

29/04/2021

The Worker was employed by a recruitment agency as an agency worker. She was provided with a contract dated 25/1/2021 signed on behalf of the recruitment agency and employed as an assembly operator with a manufacturing company in her capacity as an agency worker. The recruitment agency is a licensed employment agency. The contract stipulated that the Worker’s employer was the recruitment agency. The Worker commenced employment on the 27/1/2021 on a fixed term contract until the 19/5/2021.

The Worker’s employment was terminated by the recruitment agency by way of letter dated 2/4/2021 with one week’s notice on the basis that they no longer had an employment opportunity for her, as her role with the Employer had ceased. The Employer’s representative submitted that the employer had been incorrectly named in the proceedings and that the recruitment agency was the correct employer for the purposes of this claim.  

The Worker referred her claim under Section 13 of the Industrial Relations Acts 1969, as amended against the Manufacturing Company to the WRC on the 29/4/2022 alleging that she was unfairly dismissed.

The Worker submits that she was unfairly dismissed by the Employer on the 1/4/2021 without any warning and without a valid reason. The Worker was advised by the Employer, in reply to her query regarding the reason for her dismissal, that she was dismissed due to performance issues. However, no detail was provided in this regard. 

At the hearing the Worker stated that she commenced employment with the Employer on the 27/1/2021. She confirmed that her contract of employment was with the recruitment agency which was a fixed term contract for 4 months for 39 hours a week. Three other agency workers started with the Employer at the same time. She was employed as an electronic assembly operator and reported to the Floor Manager. She stated that she completed a time sheet for the recruitment agency which she handed in on a weekly basis.

At the end of January 2021, she was advised by her Manager that she may not be suitable for the position on the basis of her training record. She was surprised with this as she had never been advised that there were any issues with her performance. On the next occasion she was advised by her Manger that they were happy with her performance.

At the end of February 2021, she was moved to a different cell within the company and was advised by her Manager that there were issues with her performance in that she was too slow. She stated that the targets were impossible to achieve and that her performance was praised by the unofficial trainer in the new cell.

The Worker stated that she did not receive any warning prior to her dismissal. She confirmed that she was called off the floor by her Manager on the 1/4/2022 who told her that it was not working out, that there performance issues and that he couldn’t go into detail about it.

The Worker stated that she was very upset and was in shock as she had never been let go before. She stated that she felt singled out as the other 3 agency workers were kept on.

At the hearing, the Worker confirmed that she was paid weekly by the recruitment agency and understood she was employed by them. The Worker further stated that the recruitment agency didn’t let her go, she was dismissed by the Employer. The Worker also confirmed that she had an employee handbook from the recruitment agency, and she was aware of their disciplinary procedure.  

She stated she received a letter from the recruitment agency dated 2/4/2021 advising her that her employment had been terminated with one week’s notice. The letter stated that the reason for her dismissal from the Employer related to her ongoing under performance. The Worker stated at the hearing that the recruitment agency, was shocked to hear that she was let go.

At the hearing the Worker stated that she was looking for compensation equivalent to 6 weeks wages which was the remaining amount of time left on the fixed term contract.

The Employer’s representative forwarded correspondence prior to the hearing and a submission which was received after the hearing. The Employer’s representative in correspondence sent to the WRC dated 24/5/2022 and 7/9/2022, confirmed that the Employer was incorrectly named as an Employer in the case and confirmed that the correct Employer was the recruitment agency. A letter from the recruitment agency dated 2/4/2021 to the Worker was also attached which confirmed the employment status of the Worker from the 27/1/2021 as an employee of the recruitment agency. 

The Employer submits the following by way of written submission:-

The Worker was employed by the recruitment agency. The recruitment agency is a licenced employment agency. A copy of the list of licenced employment agencies with the name of the recruitment agency was attached.  The Worker was employed by the recruitment agency as an assembly operator from 27/1/ 2021 to 1/4/2021, a period of just over 2 months. The recruitment agency provided a letter dated 29/8/2022 regarding the Worker’s employment a copy of which was attached.  The Worker was released from employment on 1/4/2021.

By email dated 1/4/2021 the Employer explained the events regarding the Worker’s release to an employee of the recruitment agency. By letter dated 2/4/ 2021 an employee of the recruitment agency confirmed the details of the Worker’s release including notice period and final payments. The reason stated for the Worker’s termination of employment was underperformance. It was also submitted that the Employer contracts with the recruitment agency for the provision of recruitment services (contract, permanent, or contingent hires) and payroll bureau services.

It was further submitted on behalf of the Employer, that letters were sent to the WRC dated 24/5/2021 and 7/9/2022 setting out that the Employer was incorrectly named in these proceedings. It was further contended that the letters also clarified that the Employer had no direct relationship with the Worker and that there was no relationship of employer and employee between the Employer and the Worker.

As a preliminary matter I am required to determine who is the correct employer for the purposes of this claim.

The representative of the entity/company named as the Employer in the within claim submits that it has been incorrectly named in these proceedings on the basis that the Worker was employed by the recruitment agency and refers to various letters from the recruitment agency to support that assertion. 

At the hearing the Worker agreed that she was employed by the recruitment agency but that she was dismissed by the Employer. The contract of employment provided by the Worker clearly states that the employer is the recruitment agency.  The contract further states: -

“Under this contract you are an Agency Worker as defined by the Protection of Employees (Temporary Agency Worker) Act 2012. Please note that the contract is dependent on the business needs of ………….”.

The claim before me was submitted under Section 13 of the Industrial Relations Acts, 1969 as amended.

Section (3) of the Industrial Relations Act 1946, as amended, defines a “trade dispute” as follows:

“the expression ‘trade dispute’ means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;”

Section 23 of the Industrial Relations Act 1990 defines a “worker” for the purposes of trade dispute. 

Section 23 (1) in the relevant part provides:

“In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—….”

The Employer submits that the Worker does not have a contractual relationship with the Employer and therefore it is not the correct employer for the purposes of this claim. Based upon the contract of employment dated 25/1/2021 and other documentation provided by the Employer, I am satisfied that no employment relationship of employer and employee existed between the Worker and the Employer named in these proceedings but did exist between the Worker and the recruitment agency. This position was accepted by the Worker herself at the hearing.

I refer to the decision of the Labour Court, Rt Training Research & Consulting Limited -And-A Worker LCR19143, which stated that:

“The Court is satisfied that the claim does not constitute a “trade dispute” within the meaning of the Industrial Relations Acts, as there was no employment relationship between RT Training Research & Consulting Limited and the worker.” 

Having considered all the relevant information and based upon the decision of the Court in the above case, I am satisfied that there was no employment relationship between the Worker and the Employer and therefore the claim does not constitute a “trade dispute” for the purposes of Section 13 of the Industrial Relations Acts 1969, as amended. Accordingly, I do not recommend in favour of the Worker in respect of this claim.

 For the reasons set out above, I do not recommend in favour of the Worker in respect of this claim. 

Agency worker – incorrect employer