Complainant

Respondent

Parties

Kieff  Bosse

TIFCO

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-00051117-001

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00051117-002

21/04/2022

The complainant submitted the within claims under Section 8 of the Unfair Dismissal Act, 1977 and Section 77 of the Employment Equality Act, 1998 on 21st of April 2022.

The complainant submitted an additional claim form on the same date and containing the same claims against a different respondent bearing the complaint reference ADJ-00039756.

The complainant has also submitted a number of additional claims against that respondent under the following pieces of legislation Section 77 of the Employment Equality Act, 1998, Section 81E of the Pensions Act, 1990, Schedule 2 of the Employment Permits Act, 2006 – Penalisation, Section 27 of the OWT- Penalisation, Section 27 of the OWT- Penalisation, Section 14 of the Protection of Employees (Fixed term) work 2003, Fixed Term Work & Part time Work and Section 8 of the Unfair Dismissal Act, 1977.   These claims were submitted on 25th of February 2022.  These claims bear the complaint reference ADJ-00037872.

All of the claims were scheduled for hearing at the same time and date and were heard together on 28/07/2023.   Both named respondents attended the hearing.

Preliminary Issue:  The Correct Respondent

The named respondent, at the hearing stated that it was not the correct respondent to these claims.

The named respondent submits that they provide a management service to the hotel but were not the employer of the complainant.  The respondent went on to state that the complainant was employed by the Hendrick hotel against whom the complainant has also lodged the same complaints on the same date. 

The named respondent advised the hearing that it is engaged on a commercial management services basis contract by the Hendrick Hotel.  It further submitted that any direct involvement with the complainant was in compliance with the terms of the commercial management services basis contract with the Hendrick hotel.  The respondent did not have involvement with the complainant outside of the terms of the contractual management services agreement provided under the contract with Hendrick.

 The Contractual Services Agreement includes the below provisions as entered into between the Hendrick Smithfield and the within respondent.

“Each of the hotel employees is and shall be retained by or on behalf of, or be an employee of the owner and not of the operator”

“The Owner shall be solely responsible for the payment or employment costs and for all statutory rights and obligations arising in relation to hotel employees”

“It is the intention of the parties that on termination or expiry of this agreement howsoever or whatsoever arising, no operator personnel shall transfer to the owner and no hotel employees shall transfer to the Operator”

The named respondent submits that an employer and employee relationship did not exist with the complainant.    The respondent advised the hearing that it was adhering to the terms of the Contractual Services Agreement on behalf of the Hendrick.    The respondent submits that it did not make an unfair dismissal, nor did it breach the Employment Equality Act as no employer employee relationship existed.

The other named respondent against whom the same claims were also lodged, as well as additional claims, the Hendrick hotel, also advised the hearing that the within respondent was not the correct respondent and that all claims should correctly have been lodged against them i.e.  Hendrick hotel, Smithfield.

Both named respondents attended the hearing and Hendrick hotel agreed that they were in fact the correct respondent to the claims and not Tifco.   Both respondents at the hearing argued that the correct respondent was in fact the Hendrick Hotel.

The complainant at the hearing did not object to this and agreed that his employer was the Hendrick Hotel but stated that he had named Tifco as he had to go to the Tifco office to make his complaint.

Based on the totality of the evidence adduced in relation to this issue I am satisfied that the complainant was employed by the Hendrick hotel and not the named respondent.   I also note that the within claims were also lodged against Hendrick Hotel on the same date.

Thus, I am satisfied that the complainant has named the incorrect respondent on the complaint form associated with these complaints.  Each of the within complaints has been investigated against the correct respondent, the Hendrick Hotel, and decisions issued under reference number ADJ-00039756.

I am satisfied that the complainant has named the incorrect respondent on the complaint form associated with these complaints.  Each of the within complaints has been investigated against the correct respondent, and decisions have been issued under reference number ADJ-00039756.

Based on this finding, I decide that the within complaints are not well-founded.