Complainant

Respondent

Parties

Eamonn  O'Connor

Noel Recruitment

Representatives

Self-Represented

Self-Represented

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-00051447-001

23/06/2022

The Respondent is a recruitment agency with whom the Complainant has been registered since June 2017. The Complainant’s hours or work and weekly payment was variable throughout his engagement with the Respondent. The alleged date of dismissal is the subject of a preliminary application below.

On 23rd June 2022, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent has not provided him with work since 22nd December 2021 and had effectively dismissed him from that date. The Respondent denied this allegation on substantive and technical grounds. They denied that they had not offered the Complainant work from that date and stated that the Complainant was still engaged by the date of the referral of the complaint. In addition to the foregoing, the Respondent submitted that the Complainant did not have the required continuity of service as required by the Act. Finally, the Respondent submitted that in the event that the date of 22nd December 2021 is accepted as the date of dismissal, the matter is statute barred.

A hearing in relation to this matter was convened for, and finliased on, 22nd November 2022. This hearing was held primarily on an in person basis, with the Complainant attending the same and giving evidence by video link. This portion of the hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

As the preliminary matters raised by the Respondent are potentially determinative of the proceedings, these will be discussed in advance of the substantive matter.

The Respondent submitted that the Complainant was not dismissed prior to the lodgement of the complaint form. In this regard, the Respondent opened an email to the Complainant offering him work, dated 20th January 2022. The Respondent opened further emails again offering the Complainant work, cumulating with the Complaint stating that he was not available for work for the foreseeable future. The Respondent submitted that on the date of the referral of the complaint form, the Complainant remained on the Respondent’s books, but had made himself unavailable for work. In such circumstances, they submitted that he was not dismissed for the purposes of the present Act and consequently he did not enjoy jurisdiction to bring the present complaint.

By response, the Complainant submitted that he had been dismissed either in December 2021 or in January 2022. He submitted that the Respondent had failed to provide him with any work from December 2021. He stated that following an internal process held in January 2021, the Respondent did not answer any of his phone calls in relation to work. He submitted that he was aware of a significant amount of work being offered in his region that he could have been provided to him. He submitted that the Respondent’s failure to do so constituted a dismissal for the purpose of the present Act.

The Complainant has alleged that the Respondent’s failure to provide him with work, coupled with their refusal to contact him thereafter constitutes a dismissal for the purposes of the present Act. In the alternative, the Respondent has submitted that the Complainant was not dismissed on the date of referral of the complaint form, and that he was offered work in the days following his alleged dismissal.

Naturally, for a complaint of unfair dismissal to succeed, the Complainant must demonstrate that he was dismissed. In the vast majority of such cases dismissal, either through resignation or termination by the Respondent is accepted. Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v Joseph McManus, UDD1753, the Labour Court held that,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”.

Regarding statements that may amount to a termination of employment, in the matter of Devaney -v- DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Regarding the instant case, it is apparent that the Complainant was neither dismissed in December 2021 or January 2022. It is apparent that on 28th January 2022, the Complainant informed the Respondent that he would not accept work for the time being, but that he would let the Respondent know when he is available. The Respondent is a recruitment agency that hires the Complainant to third parties and in this regard, it is not unusual that such an employee would indicate that they are unavailable for a period of time. Thereafter, the Complainant stated that he had difficulty in contacting the Respondent, primarily by way of unanswered phone calls. Taking this submission at its height (and it is noted that the Respondent denies the same), this is an allegation of poor organisation rather than of dismissal by the Respondent.

Having regard to the foregoing, I find that the Complainant was not dismissed by the Respondent by the date of the referral of the present complaint. In such circumstances, I find that the complaint is not well-founded. While it is noted that the Respondent dismissed the Complainant after the date of referral, such a matter is outside the scope of the present complaint.

I find that he Complainant was not unfair dismissed, or dismissed at all, by the date of the referral of the complaint. In such circumstances, I find that the complaint is not well-founded.

Dismissal, Recruitment Agency