Complainant

Respondent

Parties

Teresa  Burke

Abbott Ireland

Representatives

Tommy McGarry, representative and brother of the Complainant

Kevin Bell BL instructed by Colum Holland Matheson

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-00057319-001

22/06/2023

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

CA-00057319-002

22/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057319-003

22/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport, Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00057319-005

22/06/2023

Four complaints were issued by the Complainant. At the Adjudication hearing the Complainant was represented by her brother.

CA-00057319-001 – Constructive Dismissal

CA-00057319-002 – Unfair Dismissal

CA-00057319-003 – Minimum Notice

CA-00057319-005 – Regulation 18 of the European Communities (Road Transport, Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

Case Management

At the commencement of the Adjudication hearing the Adjudication Officer (hereafter referred to as AO) sought clarification on the complaints being pursued.

The Complainant outlined that her first complaint CA-00057319-001 was that she was constructively dismissed (forced to resign) on 22 May 2023 due to unacceptable work conditions. The Complainant then advised that having tendered her resignation on 22 May 2023, the Complainant intended working out her contractual notice, of 4 weeks, however on 13 June 2023 she was told by her manager to leave her work-station and she was escorted off of the premises in a manner that humiliated and demeaned her. This event gave rise to her second complaint (CA-00057319-002) which was that, as well as being constructively dismissed on 22 May 2023, she was also expressly dismissed on 13 June 2023.

At the hearing this AO advised the Complainant that she could not have been dismissed twice and it was necessary that she elect whether she wished to pursue the constructive dismissal complaint or the express dismissal complaint. 

The AO also advised the Complainant that the WRC jurisdiction of minimum notice claim is statutory notice (Minimum Notice and Terms of Information Act 1973) as opposed to contractual notice, which in this complaint would be one week.  The AO also advised that whether a notice period is worked out by an employee, is a matter for the employer to decide on.  An Employer has the statutory right to elect, that rather than a notice period being worked, that the employee will be paid in lieu of notice instead.

In light of this the Complainant advised the AO that she wished to pursue the constructive dismissal complaint and CA-00057319-002 – Unfair Dismissal complaint and would not be pursued and could be treated as withdrawn.

As the Complainant resigned her employment the AO advised her that an employee is not entitled to receive minimum notice where the employment is ended by an employee. Also as the Complainant worked out two weeks of her contractual notice period after handing in her resignation, her statutory minimum notice entitlement (1 week) was worked out by her. In light of this, the Complainant advised the AO that CA-00057319-003 – Minimum Notice complaint, would not be pursued and could be treated as withdrawn.

The Complainant further advised the AO that CA-00057319-005 – Terms of Employment complaint was misconceived and would not be pursued. It too could be treated as withdrawn.

After case management, the only extant complaint that remained was CA-00057319-001 - the Constructive Dismissal complaint – and adjudication proceeded in respect of this complaint in Sligo WRC Offices on 17 October 2023.

This decision is confined to a decision in respect of CA-00057319-001 – the Constructive Dismissal complaint.

As a preliminary application was brought by the Respondent that the WRC has no jurisdiction to investigate CA-00057319-001 – the Constructive Dismissal complaint –  on the basis that the Complainant did not have 52 weeks of continuous employment with the Respondent, the Complainant gave the following evidence under oath:

1.       Her employment with the Respondent commenced on 16 March 2022 when she started work as a quality assurance coordinator for the Respondent.

2.       At the commencement of her employment, the Complainant signed a contract with an employment agency, Collins MacNicholas (referred to as the Agency). This was a fixed term contract which commenced on 19 April 2022 and expired on 14 October 2022. However at all times from April to October 2022, she worked for the Respondent.

3.       On Monday 17 October 2022, with no break in service the Complainant continued her work with Respondent. Her terms and conditions did not change.

4.       Due to impossible and unacceptable working conditions the Complainant was forced to file her resignation on 22 May 2023.

5.       She contends that in the period of time during which she had an employment contract with the Agency, the work that she did, on a day-to-day basis, was for the Respondent. When the transfer occurred on 17 October 2022 her work did not change in any respect.

6.       The Complainant submitted that section 13 of the Unfair Dismissals Act 1993 makes specific provision to ensure that an Employer who recruits an employee from a recruitment agency has the same rights and protections as an employee who works directly for the employer.

The Complainant was cross examined as follows:

7.       When asked who paid the Complainant for her work from April until October 2022, she accepted that her salary was paid into her bank account by the Agency.

8.       She accepted that she signed a new contract with the Respondent on 17 October 2022 and she accepted that she was on a probation period of 6 months, which would have ended on 17 April 2023

9.       She accepted that her employer’s name from April – October 2022 was the Agency

10.   She accepted that in October 2022 her employer’s name changed to the Respondent.

A preliminary application on jurisdiction was made on behalf of the Respondent that, in circumstances where an employee concedes that she initially had a fixed term employment contract with the Agency which ended in October 2022 and a new contract of employment commenced with the Respondent, that the WRC has no jurisdiction to investigate a complaint of constructive dismissal where the Complainant does not have 52 weeks of continuous service with the Respondent.

The Respondent relied upon the following legislation:

The Unfair Dismissals Acts 1977-1993

The Respondent relied upon the following authorities:

An Accounts Assistant v. A Care Services Provider (WRC; Adj 23456)

Musgrave v. Paypal Europe (EAT; UD1630/2012)

Zajaczkowski v. Hewlett-Packard CDs Ireland Ltd. (Labour Court; January 21 2019.

Respondent Submissions

1.       The Respondent submitted that while there is conflict between the parties on the substantive issue,  the facts that are material to the preliminary issue, are not in dispute.

2.       The Complainant started working for the Agency, albeit within the Respondent premises in April 2022 as a quality assurance co-ordinator. This was pursuant to a fixed term contract that she signed with the Agency. From April – October 2022,  she was paid by the Agency.

3.       In October 2022 her fixed term contract ended with the Agency and she signed an employment contract with the Respondent. The nature of her work did not change but her employment relationship changed in October 2022 from being a fixed term employee of the Agency to being an employee of the Respondent.

4.       In May 2023 she resigned her post. As her employment with the Respondent was from October 2022 until May 2023, she did not have the requisite 52 continuous employment with the Respondent and the WRC does not have jurisdiction to investigate this complaint.

5.       The Labour Court held in the Zajaczkowski case, that Section 13 of the Unfair Dismissals Act 1993 does not operate to extend continuity of service where an employee has worked for an employment agency prior to working for an employer doing the same or similar work.

6.       Section 13 does not dilute the requirement of section 2 (1) (a) of the Unfair Dismissals Act 1977 which requires 52 weeks of continuous employment “with employer who dismissed them.”

7.       Section 13 states:

8.       In Zajaczkowski the Labour Court found as follows:

“The purpose of section 13 is to create certainty as regards liability and employment status for the purposes of the Act as respects a dismissal occurring while a person is employed by an employment agency and assigned to a third person. The section cannot be interpreted as having a general application for the purposes of computing service following the completion of the contract with the employment agency and in respect of a dismissal occurring during the currency of a subsequent fixed term contract of employment. “

“The Court finds that Section 13 of the (UD 1993) Act does not operate to create continuity of service for the purposes of the Act for an employee of an employment agency who subsequently becomes a fixed term worker in the employment of an employer to who he has been previously assigned.”

Having considered the preliminary application made on behalf of the Respondent and having heard the parties’ oral submissions, I find as follows:

The WRC has no jurisdiction to investigate a complaint brought under the Unfair Dismissals Acts 1977, where an employee does not have 52 continuous weeks of employment with the employer who dismissed them (section 2 (1) (a) of the Unfair Dismissals Act 1977 as amended.) This requirement is not altered by section 13 of the Unfair Dismissals Act 1993.

In this case the Complainant was employed by the Respondent for less than 52 continuous weeks, even though her work location was at the Respondent site and her day-to-day dealings were with the Respondent.

Applying the above authorities and the Labour Court decision of Zajaczkowski I find that Section 13 of the Unfair Dismissals Act 1993 does not create continuity of service (for the purposes of section 2 (1) (a) of the Unfair Dismissals Act) for an employee of an employment agency who subsequently becomes an employee of an employer to who he has been previously assigned.

Section 13 operates where, inrespect of a dismissal, an employee has worked for an agency for more than 52 weeks and where for that period the employee’s work has been with a third party.

Section 13 does not operate where an employment contract with an agency ceases prior to 52 weeks and where a new contract with the third-party employer commences.

If an employee has 52 continuous weeks of employment with an Agency but whose actual work is with a third party, that employee’s employer is treated as being the third party where a dismissal occurs, but that is not so if the employment is less than 52 weeks. If it is less, there is no statutory provision whereby the employment period with an agency may be added to the employment period with a subsequent employer, to make up 52 weeks. This is not a TUPE case.  If the employment with the agency ends prior to 52 weeks, and another employment contract commences, time starts again.

I find that the Complainant does not have the requisite service to maintain a complaint under the Unfair Dismissals Act 1977, as amended and the WRC has no jurisdiction to investigate this complaint.

CA-00057319-002: The WRC has no jurisdiction to investigate this complaint.

All other complaints were withdrawn by the Complainant at the Adjudication hearing on 17 October 2023.

Unfair Dismissal – less than 52 weeks service - Section 13 of the Unfair Dismissals Act 1993